OPINION: This article may contain commentary which reflects the author's opinion.
Legal analysts monitoring the cases say that Special Counsel Jack Smith has filed a court claim that could potentially strengthen former President Donald Trump’s efforts to have all charges against him dismissed if he were to win the next presidential election.
“In his latest filing in the Mar-a-Lago classified documents case, Smith writes that the special counsel is not independent and is ‘inferior’ to the attorney general, who can remove him or overrule any of his decisions. That lays the legal groundwork for Trump to appoint a favorable attorney general if elected for a second term in November,” Newsweek reported.
Trump has pleaded not guilty to 40 charges that accuse him of unlawfully retaining sensitive documents after leaving the White House in January 2021. The allegations also claim that he obstructed the federal government’s efforts to recover these documents from his Florida estate, Mar-a-Lago.
Smith has accused Trump of several charges, including conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing and attempting to obstruct an official proceeding, and conspiring against rights. The charges are related to the January 6, 2021, riot at the US Capitol and an alleged scheme to present fake pro-Trump electors to the Electoral College.
During an episode of his Spotify podcast “Stay Tuned With Preet” in October, former New York federal prosecutor Preet Bharara stated that he believed Trump would appoint an attorney general who would most likely dismiss the federal indictments if Trump’s trials were not concluded by that time.
Smith, per his filing, appears to agree with Bharara, Newsweek noted.
Smith was responding to a brief submitted by Edwin Meese, a former attorney general to President Reagan, who acted as an “amicus” or a “friend of the court.” Meese argued that Smith’s appointment as special counsel was illegal in both Trump’s classified documents case in Florida and his election fraud case in Washington, D.C. Smith was defending his appointment before Judge Aileen Cannon.
In response to Cannon’s argument, Smith rejected that and wrote that according to the appointments clause of the U.S. Constitution, the special counsel is an “inferior officer” and not an independent entity.
“An inferior officer is one who reports to and is supervised by a superior officer,” Smith’s briefing states.
“The Special Counsel is an ‘inferior Officer’ under the Special Counsel regulation because the Attorney General supervises the Special Counsel’s work, may remove him from office, and may review and countermand his decisions.”
“And, as an additional means of exercising control, the Attorney General can rescind the regulation at any time, or amend the appointment order, and exercise direct statutory supervision over the Special Counsel,” Smith added.
“The Special Counsel is subject to the Attorney General’s supervision and oversight. The Special Counsel’s work is overseen by the Attorney General, who appointed him and delegated to him powers that are otherwise vested in the Attorney General alone,” he adds.
In his podcast, Bharara, the former United States Attorney for the Southern District of New York, suggested that after becoming president, Trump could potentially pardon himself in federal cases related to election interference and the hoarding of classified documents. This option would be highly controversial and would likely be challenged in court, however.
The second option, according to Bharara, would be for Trump to appoint a favorable attorney general to drop the federal charges. This was an option that Trump “almost certainly” would employ if elected president in 2024.
He added that a third option is for Trump to claim presidential immunity from prosecution based on constitutional protections for acts committed in office.
