Originally Posted by James Brown
Of course! I would love to see Clinton, Biden and Trump in jail for their mishandling of classified information. I am surprised you wrote this post though.
Guilt or innocence is not the legal issue! Jack Smith is a private citizen appointed by the Attorney General as a special prosecutor. The Constitution has an appointment clause covering the Executive branch. If the appointee is a "principal officer" the appointment
must be approved by Congress. If the appointee is an "inferior officer" the appointment must be made pursuant to a statute authorizing the appointment or approved by Congress.
Smith was not approved by Congress. The judge determined that he is an "inferior officer" under the appointments clause, she also determined that there is no statute authorizing the appointment of a private citizen as special prosecutor with all the authority of a US Attorney. So, Smith's appointment has been determined to be unconstitutional. The critical legal issue of whether some tangentially related statutes give Garland implicit authority to appoint Smith will be reviewed upon appeal. Also, there are strong arguments that Smith is a principal officer requiring Congressional approval in any case. So the appeal will be interesting. Also probably short-lived when Trump is elected.
So, I hope everyone understands a key point here.
Trump could be guilty as sin and that does not excuse an unconstitutional special prosecutor appointment. This is a critical separation of powers question, and like the immunity decision is a lot bigger than the Trump cases.
Back to me and you, we would have been prosecuted by a US Attorney or JAG officer (
an employee of the government) who is unambiguously authorized by statute to prosecute federal crimes. We would be convicted and do time.
If you want to speculate why Garland chose to go outside of his staff and bring in Smith, I have some thoughts. Clearly Garland did not see this issue coming, but it is not brand new. Conservative legal scholars have been arguing that the authority to appoint private citizens as special prosecutors expired 20 years ago when the Watergate era independent counsel act expired.
Jim
Actually, Cannon's opinion is reportedly, as per Litman, a cut and paste of arguments presented by Citizen's United from her rightwing outside circus that she invited into her court of which she cobbled together with those of Clarence Thomas. None of which makes them correct.
That said, Garland is reportedly appealing the "principle" of his ability to appoint a special prosecutor which is done, of course, to demonstrate impartiality and objectivity.
Of course, that noble ideal has been destroyed by Trump and company with his outrageous rhetoric about Jack Smith, Garland and it's all Biden's doing. The latter is another example of how Biden is supposedly some sort of evil mastermind while, at the same time, being feeble and incoherent...
