Over the last few months, we have had a few discussions regarding the appointment of Jack Smith as special counsel.
At the heart of this is whether Merrick Garland had the authority to appoint Smith.
Honestly, this issue was thought to be settled back in the 1980s and 1990s, but Justice Clarence Thomas just stirred the pot in a big way.
Is It Constitutional?
The Independent Counsel Act was originally presented in 1987, then argued again before Congress during a 1999 hearing.
During that hearing, there was an outline given for returning the power to appointing independent counsel to the attorney general.
The guideline stated, “The regulations set forth (28 C.F.R. 600.1) a three-part analysis for determining whether to appoint a special counsel.
“First, the Attorney General must determine that ‘criminal investigation of a person or matter is warranted.’
“Then, he or she must determine whether investigation or prosecution of the ‘person or matter’ by a U.S. Attorney’s Office or a Justice Department litigating division would present either ‘a conflict of interest for the Department’ or ‘other extraordinary circumstances.’
“Finally, a further question is to be asked, namely, whether ‘it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.’”
Those guidelines have been in place ever since and they have never been challenged.
In fact, Donald Trump’s attorney general, William Barr, used those guidelines to appoint Special Counsel John Durham to investigate the Russian collusion probe against Donald Trump.
Even so, in the presidential immunity ruling, Justice Clarence Thomas wrote a concurring opinion that stated, “By requiring that Congress create federal offices ‘by Law,’ the Constitution imposes an important check against the President—he cannot create offices at his pleasure.
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.
“A private citizen cannot criminally prosecute anyone, let alone a former President.”
He concluded, “Those questions must be answered before this prosecution can proceed.
“We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”
So, an issue that everyone thought was settled now apparently needs to be reargued before the court.
If, somehow, Smith’s appointment is nullified, then the question is what happens to the charges that were brought by Smith against Trump.
Based on Thomas’ language, I would have to think that entire investigation is nullified.
