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Is Special Counsel Jack Smith An Emperor Who Wears No Clothes?

Jack Smith's standing to prosecute Trump

Special Counsel Jack Smith delivers remarks on a recently unsealed indictment against former President Donald Trump at the Justice Department on June 9, 2023 in Washington, DC. Former U.S. President Donald Trump has been indicted on 37 felony counts in the special counsel's classified documents probe. Photo by Chip Somodevilla/Getty Images

During the extensive questioning at the Supreme Court last Thursday, Justice Clarence Thomas, the most senior Supreme Court justice, posed a pivotal query regarding the legitimacy of the special counsel's prosecution of Trump. This question, directed at Trump's lawyer, John Sauer, carries significant weight in the ongoing legal discourse:

Did you, in this litigation, challenge the appointment of special counsel?

Sauer clarified that the Trump team had not raised that concern "directly" in the current Supreme Court case, but "we totally agree with the analysis provided by Attorney General Meese [III] and Attorney General Mukasey." The analysis had argued that Jack Smith's appointment was unlawful because he lacked Senate confirmation.

Interestingly, the issue surfaced a few days earlier on Tuesday, when President Trump shared an article on Truth Social that claimed special counsel Jack Smith lacks the standing to defend the Washington, D.C., Circuit Court ruling on presidential immunity before the Supreme Court.

Jack Smith, appointed by Attorney General Merrick Garland as the Special Counsel, is prosecuting Trump on the classified document case in Judge Aileen Cannon’s court in Florida and matters related to January 6 in U.S. District Judge Tanya Chutkan’s court in Washington, D.C. Between the two federal criminal cases, Trump faces 46 counts and the potential for hundreds of years of prison time.

Steven Calabresi, a professor at Northwestern Pritzker School of Law and co-author of the amicus brief, along with former Attorneys General Ed Meese, Michael Mukasey, Professor Gary Lawson, and Citizens United, penned the article on the Reason website.

The heart of the matter lies in the fact that Jack Smith, in order to assume the role of United States Attorney under the designation of Special Counsel, requires Senate confirmation. However, he has never undergone this crucial confirmation process. This glaring fact raises serious questions about the legitimacy of his actions and the potentially wide-ranging consequences they could have on the ongoing legal proceedings.

Contrast Jack Smith with other recent special counsels, such as Robert Hur, the former United States Attorney for the District of Maryland who investigated the Biden document case, and David Weiss, the U.S. Attorney for the District of Delaware, who is investigating Hunter Biden matters; both Hur and Weiss have Senate confirmations.

Due to his unconstitutional appointment, Smith is considered a private citizen in the eyes of the law. This status potentially renders all his actions since his appointment null and void, a legal consequence that could significantly impact the cases he is prosecuting.

According to Calabresi, only Congress has the authority to create the Office of Special Counsel, and therefore, Smith's role lacks legal standing. The argument implies that one could legally challenge Smith's actions, such as his imprisonments or plea bargains.

Calabresi further contends that Smith's authority exceeds that of Senate-confirmed U.S. Attorneys, making his position unconstitutional. We strongly recommend that readers interested in the legal reasoning read the article. Calabresi concludes his article by saying:

Federal prosecutions of former President Donald Trump must be done in a constitutional way no matter how much he is hated for his actions of January 6, 2021, or for any other reason. Here, Special Counsel Jack Smith is an Emperor who wears no clothes.

Rewind to November 2022. Jack Smith was in The Hague, investigating war crimes in the Kosovo War. He stepped down from his position on November 18, 2022, the day AG Garland appointed him as Special Counsel.

The AG knew that Jack Smith did not have Senate confirmation, unlike the 92 U.S. attorneys. But despite that, he chose Smith to prosecute Trump.


We will never know the real motivations and can only speculate about the reasons behind the decision-making process. It suffices to say that whatever considerations were involved, they evidently outweighed the fact that he lacked Senate confirmation. Additionally, his track record was less than stellar, evident in high-profile cases such as the failed prosecution of Virginia Governor Bob McDonnell in the Supreme Court.

Some critics have questioned whether Smith's ties to the Democratic Party, including his wife's status as a democratic donor and her close ties to the Obama family—she produced the documentary Becoming, which focused on Michelle Obama's 2019 book promotion tour—made him a compelling choice to prosecute Trump.

Here's another intriguing theoretical question:

If Jack Smith were to go for Senate confirmation, would the Senate confirm him now, considering how he has handled the two Trump cases?

Meanwhile, Team Trump’s motion to dismiss the classified documents case based on Smith's improper appointment is pending in Judge Cannon’s court in Florida. Stay tuned.

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