Judge Cannon holds first hearing on constitutionality of Jack Smith's appointment

 June 22, 2024

Special Counsel Jack Smith presumably thought he had two slam dunks against former President Donald Trump in his indictments against him. 

That seemed to be the case for a little while, but now the situation has taken a drastic turn in the opposite direction for Smith.

According to The Epoch Times, Smith's existence as a special counsel will be up for debate by the judge presideing over the classified documents probe, as the question of the constitutionality of his appointment is considered.

Should Judge Aileen Cannon find that he was not properly appointed, Smith's cases will be critically injured, to say the least.

What's going on?

According to NBC News, Judge Cannon held a hearing on Smith's appointment on Friday.

The outlet noted:

In federal court in Fort Pierce, Florida, Trump's lawyers argued that an officer like the special counsel must be appointed “by law” and that the special counsel should be categorized as a “principal officer” and subject to Senate confirmation. The statutory text cited by the special counsel’s office “does not authorize” the U.S. attorney general’s appointment of the special counsel, his lawyer, Emil Bove, argued.

Cannon initially expressed skepticism regarding their arguments, especially the defense's insistence that Smith's appointmentis akin to "the power to appoint a shadow government."

"That sounds very ominous, a shadow government. But what does that mean?" Cannon shot back.

Bove argued that the idea could arise from people like Smith being appointed by the AG with such great law enforcement power, without any oversight.

NBC noted Cannon's response:

“But is that really a realistic risk" when you have “well-defined statutes” regarding the attorney general's appointment authority? Cannon asked.

Defending Smith

James Pearce, in defending the special counsel's office, disputed the claim that his appointment was unconstitutional, arguing "that argument disregards precedent, would have 'pernicious consequences,' and was already resolved in U.S. v. Nixon, the Watergate-era case in which the Supreme Court found that then-President Richard Nixon had to release audio recordings and other evidence related to the scandal."

Pearce went on to point out important precedent regarding previously appointed special counsels.

Interestingly, Cannon did not issue a ruling at the conclusion of the hearing.

Instead, she instructed both the defense and special counsel's office to produce supplementary materials, putting it at a cap of five pages. Two more hearings are scheduled for the coming week.

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