Judge lets ex-AG join conservative legal heavyweights arguing Jack Smith illegally appointed


Jack Smith, Michael Mukasey

Special counsel Jack Smith (left) speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo: J. Scott Applewhite); former President Bush, right, walks with retired federal judge Michael Mukasey, left, his choice for attorney General, replacing Alberto Gonzales, Monday, Sept. 17, 2007, at the White House in Washington. (AP Photo/Charles Dharapak)

A former U.S. attorney general and noted “good friend” of Rudy Giuliani’s has entered Donald Trump’s Mar-a-Lago case as a friend of the court to argue alongside other conservative legal heavyweights that special counsel Jack Smith was unlawfully appointed.

U.S. District Judge Aileen Cannon on Wednesday granted an unopposed motion to add Michael Mukasey, the 81st U.S. attorney general who served during George W. Bush’s presidency, as an amicus curiae.

In a Tuesday motion for leave to join a group of existing amici, Mukasey asserted his time and experience as attorney general will aid Cannon as she considers the former president’s motion to dismiss the Espionage Act case on unlawful appointment grounds.

“[Mukasey] served as Attorney General of the United States after the Independent Counsel Act expired and the Reno Regulations were issued that purport to govern the appointment of Special Counsels, the constitutionality of which are at issue here,” the filing said. “This Court would benefit from Attorney General Mukasey’s knowledge of Justice Department operations and legal authorities.”

Cannon in March permitted Edwin Meese III, the 75th U.S. attorney general once appointed by then President Ronald Reagan, Federalist Society co-founder and Northwestern University law professor Steven Calabresi, Boston University law professor Gary Lawson, and the group Citizens United of Supreme Court fame to submit arguments in support of Trump.

More Law&Crime coverage: Cannon scolds Jack Smith and swiftly shuts down his Trump gag demand for ‘wholly lacking in substance and professional courtesy’

Smith, for his part, fired back in March by calling the amici’s arguments “meritless” and doomed to fail, as they have in “every court.”

“Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them — including authoritative decisions by the Supreme Court,” the special counsel’s reply said. “And resolving the validity of the Special Counsel’s appointment would not lead to an accelerated appellate proceeding if Trump’s claim failed. Unlike with a non-frivolous immunity claim, Trump would have no right to an interlocutory appeal should the Court deny his Appointments Clause challenge.”

Smith is not wrong about the past rejections of these theories, as a perusal of court rulings from special counsel Robert Mueller’s investigation shows.

Trump’s lawyers have argued, as Hunter Biden’s separately have, that the special counsel was unlawfully appointed and funded, claiming that Smith is a “principal officer” whose appointment by U.S. Attorney General Merrick Garland required confirmation by the U.S. Senate.

But these same arguments were raised during Mueller’s Russia investigation and lost time and again, as courts ruled the special counsel is an “inferior officer” who doesn’t need to be confirmed by the Senate and still answers to the U.S. attorney general.

When Garland appointed Smith in November 2022, he wrote that he did so “[b]y virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509, 510, 515, and 533, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation.”

Smith emphasized that he remains under Garland’s “plenary supervision” and can be removed from his role.

“Under governing authority, the Special Counsel is an ‘inferior Officer’ who may be appointed by the head of a department because he is subject to supervision and oversight by the Attorney General,” the special counsel said. “That conclusion is confirmed by cases addressing prosecutors vested with authority comparable to the Special Counsel.”

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