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June 24, 2024

With the so-called “classified documents” trial against Trump paused for several months, and as we wait for a Supreme Court decision on the extent of presidential immunity, this seems like a good time to take a comprehensive look at Jack Smith’s appointment as special counsel and whether it was even legitimate in the first place.  (Spoiler alert:  We say NO, it was not.) 

Once again, investigative reporter Julie Kelly is loaning her platform at Substack to someone with valuable information to offer.  This time, it’s David W. Fischer, a Maryland- and DC-based defense attorney who recently represented J6 defendant Thomas Caldwell and managed to get his client acquitted on seditious conspiracy and other conspiracy charges.

As you know, Trump’s attorneys have challenged Jack Smith’s appointment as special counsel and say that Trump’s Florida indictment should be dismissed.  Judge Cannon set aside two full days --- last Friday and this Monday (today) --- to hear arguments on whether Smith even has the legal authority to prosecute Trump.  This is taken by attorney Fischer to mean she “perceives Trump’s argument as tenable.”

He notes that part of Trump’s immunity appeal now before the Supreme Court was an amicus (“friend of the court”) brief filed by former Attorney General Ed Meese.  Meese argues that the powers vested in Jack Smith are equal to those held by the 93 U.S. Attorneys, who had to be presidentially appointed and confirmed by the Senate.  (It could be argued that Smith is even more powerful.)  Smith can’t just come in without Senate confirmation and exercise that much power on his own.

Unlike the U.S. attorneys, Smith is NOT a presidentially-appointed “officer of the United States.”  Given that, and his lack of Senate approval, he doesn’t have authority to just move in, roll up his sleeves and proceed to railroad a former and potentially future President

The DC Circuit Court of Appeals looked at a similar argument in the appointment of Special Counsel Robert Mueller and sided with Mueller, but Fischer says they “glossed over several important legal arguments Meese and Trump’s legal team are now making,” such as that Mueller had gone through Senate approval before.  Besides that, Fischer says, their rejection of the challenge to Mueller’s appointment isn’t binding on Judge Aileen Cannon in Florida, who sits in the Eleventh Circuit.

Fischer goes into the history of special counsel legislation and explains that, as the law currently stands, “outside” counsels such as Smith are only authorized to “assist” the U.S. Attorney they work under.  “Jack Smith, by contrast, is not ‘assisting’ superiors at the DOJ --- he is running a multi-million-dollar prosecution, hiring and supervising a team of prosecutors and case agents, and acting as if he was U.S. Attorney Jack Smith.”  And that’s what the law says a real special counsel does:  “[T]he Special Counsel [has]...the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”  Surely, then, he would be constitutionally required to go through the same process that U.S. Attorneys do.

At first, Fischer was skeptical of Meese’s argument, but after giving it thorough review, he sees the sense of it:  that the DOJ has no authority to commission a new “officer of the United States,” in the form of a special counsel with powers equivalent to those of a U.S. Attorney.  That would be like the federal judiciary creating “special judges” with equivalent power to do the same things they do.

No wonder Judge Cannon seems to be taking this argument seriously.

We have more from Julie Kelly on the Jack Smith/special counsel issue, this time on the Mar-A-Lago raid on August 8, 2022.  As you know, both Attorney General Merrick Garland and FBI Director Christopher Wray have made (unconvincing) statements about written instructions to agents about the use of deadly force in that unique situation.  As Kelly reports, Judge Cannon has “her own set of concerns” as to how the FBI conducted the raid on Mar-A-Lago.

This week, Cannon will hold a hearing on Trump’s motion to prevent Smith from using “evidence” seized during the nine-hour raid.  Smith has had to admit that the evidence in the boxes is no longer in the same sequence as it was when they took them.  An unknown number of allegedly “classified” documents are even unaccounted for.  Here’s a refresher from last week…

Smith will also be arguing for his gag order against Trump, which has to be the most obviously partisan of all his directives.  During Trump’s New York trial, the purported reason for the gag order was to protect the sanctity of the jury --- even when it applied only to defendant Trump, not to anyone else involved in the case!  Now, the partisan judge and prosecutors want to keep the gag order even after the trial is over and the jurors have gone home to their approving families and friends.  (If Judge Merchan had wanted to protect the jury, he should have sequestered them.) 

Smith must be inspired by that pointless, never-ending censorship order to try to impose one of his own on dubious grounds that allowing the defendant to exercise free speech in criticizing his lawfare assault “endangers” the prosecutors and FBI agents (Has Smith ever considered how all his false charges against Trump might gin up threats against Trump?) Can’t wait to find out what Cannon’s questions on this will be.

“Asking Cannon to ban Trump from speaking about the raid under false pretenses,” Kelly writes, “is just another example of how the Special Counsel’s office is trying to shield the American people from learning about this case.”

Smith continues to try to keep other documents from his sloppy investigation under seal.  Thankfully, Judge Cannon is especially committed to transparency and has already released quite a bit of information, including documents that show collusion among the Archives, White House and DOJ in spring 2021, the time they were starting to put the case together.  Recall that this was just a few months after Trump had left office; the Archives was already hounding Trump for documents. 

Jack Smith and the DOJ want to keep Trump under a gag order because they consider him to be a “threat to democracy and the rule of law.”  As always when Democrats make such accusations, the truth is really just the opposite.  THEY’RE abusing the law to shut down a presidential campaign, which is an assault on democracy.  It’s hard to imagine Judge Cannon playing along with Smith on a request like this.  Trump’s attorneys filed this response about 10 days ago...

“The requested release condition would place Smith and his colleagues in a position to seek President Trump’s arrest and temporary detention any time he said something they disagreed with—including but not limited to statements on the debate stage, the campaign trail, on social media, and potentially even including communications by President Trump’s campaign staff. The motion is a naked effort to impose totalitarian censorship of core political speech, under threat of incarceration, in a clear attempt to silence President Trump’s arguments to the American people about the outrageous nature of this investigation and prosecution.”

Lastly, Mark Levin’s opening monologue on the illegitimacy of Special Counsel Jack Smith from Sunday’s LIFE, LIBERTY & LEVIN is a must-see.  He examines the appointment of Smith and how it violates the separation of powers, starting about two minutes in.

“Garland chose to violate the Constitution,” Levin says.  “He has no statutory authority and he reached into the Hague to pick somebody he wanted.  A hit man, Jack Smith.  But for our purposes, Jack Smith isn’t a principal officer, he’s not even an inferior officer.  He’s a nothing.”

“The Department of Justice does not have independent power to issue a regulation for appointing a special counsel in violation of the Constitution...”

I think Levin has capsulized the main difference between constitutionalists and non-constitutionalists.  The constitutionalists (us) look at a provision of law and say, “Fine, that’s pretty clear; how do we uphold this?” The non-constitutionalists (Democrats) look at it and say, “Okay, how can we get around this?”  And that’s especially the case when it comes to going after this particular President, as the guidelines have been kicked over.  It a lot like W. C. Fields’ old joke about reading the Bible: he was looking for loopholes.        




In the same episode of LIFE, LIBERTY & LEVIN, Peter Schweizer has an update on the threat from China.  While Jack Smith targets Trump, Biden gets a free pass on his chummy and lucrative dealings with CCP-owned companies, some, Schweizer says, with ties to Chinese intel and even criminal gangs.

He makes a great point about the concept called “big help, with a little bad-mouth.”  As he explains, “...It’s okay if Joe Biden occasionally criticizes them and says, ‘Stop stealing our technology.  Stop doing terrible things to the Uyghurs.’ They expect him to do that, because they know he has to maintain his political viability.  But when it comes to the big things, the things that really matter to them --- which is access to our technology...our capital markets...our market, Joe Biden is giving them absolutely everything they want.”  Remember this when you hear Joe sound tough on China during the debate.

More on the Biden-Burisma connection that’s being ignored by the DOJ:  Emails gathered by the FBI in 2016 and apparently squirreled away till now show that Hunter’s team (including his law firm of Boies Schiller Flexner, LLP) arranged a meeting between a senior member of Burisma Holdings and one of then-VP Joe Biden’s advisors at the State Department.  This was in 2014, just months after Burisma had been targeted for a criminal money laundering investigation by the U.K. with American assistance.  The U.K. had made a move to freeze the assets of Burisma founder Mykola Zlochevsky, whom you probably recall is alleged in FBI notes to have claimed, “I paid $5 million to one Biden and $5 million to another Biden.”

Also from John Solomon, here he is on Saturday telling Steve Bannon that the intel agencies, clearly getting information on Hunter’s activities with Russia, China and Ukraine while Joe Biden was VP, almost certainly gave the VP defensive briefings on them.  So, does Joe still want to tell us he knew nothing of his family’s foreign business?  (Note:  Obama probably got these, too, and would have been well aware.)

In the past couple of weeks, Solomon has spoken with both Jim Jordan (Judiciary) and James Comer (Oversight) and says they’ve requested “any and all” intelligence briefings given to both Obama and Biden.  Comer “clearly knows something,” because he said they’re going to get them.  This is a major development in the impeachment inquiry investigation.

And what if the intel community DIDN’T provide those briefings?  Then the FBI and CIA “have a lot of explaining to do.”

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