Top Trump DOJ Official Jeff Clark Explains Why Jack Smith’s Appointment is Unconstitutional and How He May Be Operating Outside of the Chain of Command (VIDEO)
Top DOJ official Jeff Clark appeared on Steve Bannon’s War Room to discuss Judge Cannon’s hearing on legal challenges to Jack Smith’s special counsel appointment.
Cannon did not issue a ruling after the hearing concluded on Friday.
President Trump previously filed a motion to dismiss Jack Smith’s classified documents charges based on the “unlawful appointment and funding of Special Counsel.”
According to NBC News, President 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 appeared skeptical of Trump’s legal team’s argument that a special counsel is a “principal officer.” The defense argued that giving an attorney general power to appoint a special counsel with the authority of a US Attorney is akin to a shadow government (since only a US president can appoint a US Attorney and the Senate must confirm).
“That sounds very ominous, a shadow government. But what does that mean?” Cannon asked, according to NBC News.
Cannon did question whether Attorney General Merrick had any oversight role in seeking the indictment against Trump.
Jack Smith’s prosecutor James Pearce refused to answer and claimed it would be against policy to answer the question.
“Why would there be any heartburn to answer whether the attorney general signed off on the indictment?” Cannon asked.
Jeff Clark said Jack Smith’s appointment is unconstitutional.
“You have Jack Smith, he’s got the powers of all US Attorneys – he’s like Shazam fused into one but he is not Senate-confirmed,” Jeff Clark said. “So, if he is operating outside the chain of command in the executive branch up to Merrick Garland and up to the president, then they have a big constitutional problem.
Jeff Clark continued, “Then to try to fend that off, they say well he’s subject to Merrick Garland’s supervision so then Judge Cannon’s like ‘alright, let’s explore that – how much is he being supervised?’ and well [Jack Smith’s prosecutor] says well you can’t know about that because that’s all privileged.”
WATCH:
CLARK: If Jack Smith Is Operating Outside Of The Chain Of Command They Have A Big Constitutional Problem @JeffClarkUS pic.twitter.com/x6A03781Ai
— Jayne Zirkle (@JayneZirkle) June 22, 2024
Jeff Clark offered a deeper analysis of Jack Smith’s unconstitutional appointment on Sunday:
Consider the office of Jack Smith, the Special Counsel.
It simply *must* be unconstitutional.
Congress has mandated that U.S. Attorneys be Senate confirmed (after being presidentially nominated) and constitutional law mandates that U.S. Attorneys serve at the pleasure of the President.
And U.S. Attorneys have (most of the time) limited geographic jurisdiction. The E.D. Pa. U.S. Attorney can prosecute federal crimes in Philadelphia but not San Francisco. And the N.D. Cal. U.S. Attorney can prosecute federal crimes in San Francisco but not Philadelphia.
A Special Counsel like Jack Smith can prosecute *anywhere* in the whole country. He fuses the powers of ALL U.S. Attorneys in one (like the superhero Shazam fuses the powers of various Greek gods into one).
And yet a Special Counsel like Jack Smith is not Senate confirmed. AND he cannot be removed at the pleasure of the President. Only the Attorney General can remove him, and even then only for cause.
All of this is constitutional anathema AND it wildly flouts Congress.
Finally, Special Counsels were created by mere regulation issued by the Attorney General. If that move is constitutional, then an Attorney General can totally subvert the Constitution and Congress by creating various DOJ officials by mere regulation and giving them powers that equal or exceed those of U.S. Attorneys. And if that can logically happen, then the congressional requirement of Senate confirmation is rendered meaningless and regulations by the AG can effectively leave U.S. Attorneys, creatures of statute, as nullities.
Indeed, here’s a bonus point — the Independent Counsel statute was allowed to expire by Congress. Allowing the AG to largely recreate that system — by regulation — therefore flouts Congress in a separate way — not just by end running how U.S. Attorneys operate and are appointed and confirmed.
Consider the office of Jack Smith, the Special Counsel.
It simply *must* be unconstitutional.
Congress has mandated that U.S. Attorneys be Senate confirmed (after being presidentially nominated) and constitutional law mandates that U.S. Attorneys serve at the pleasure of the…
— Jeff Clark (@JeffClarkUS) June 23, 2024
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