New special counsel Jack Smith’s constitutional qualifications for the position are suspect, according to a government watchdog group prepared to take the question to the Supreme Court.
The core question has nothing to do with Smith’s legal credentials for the appointment to investigate documents seized from former President Donald Trump’s home. Rather, the National Legal and Policy Center (NLPC) contends it raises questions about the Appointments Clause of the Constitution.
A principal officer requires appointment by the president and confirmation by the Senate, the same as other U.S. Attorneys. And Congress did not explicitly give the attorney general authority to appoint a chief prosecutor.
The expiration of the independent counsel statute after the 1990s investigations into former President Bill Clinton and more recent Supreme Court decisions striking down environmental and eviction regulations would not seem to have much in common.
U.S. Attorney General Merrick Garland delivers remarks at the U.S. Justice Department Building on November 18, 2022 in Washington, DC. (Anna Moneymaker/Getty Images)
However, the NLPC says both bare on the appointment of Smith, a former assistant U.S. attorney in Tennessee and former chief of the Justice Department’s