It seems clear to me that Jack Smith was appointed for the purpose of besetting Donald J. Trump and finding a means to keep him from running for president again. If I’m right, Smith's many strategies have come to naught this week and it is extremely unlikely that the cases he instituted in the District of Columbia and Florida (meritless as I think they are) will ever be resolved before the election. 

The case in the District of Columbia is being heard before Judge Tanya Chutkan. She indicated she wants to hear the case this coming March and has been firm about sticking to that. In one of her rulings in that case, she denied Trump’s motion to dismiss on the ground that he had presidential immunity from the crimes with which Smith is charging him respecting his objections to the 2020 election. That issue could have in the ordinary course of things been appealed to the next highest court, the U.S. Court of Appeals for the District of Columbia. Such an appeal would have made it unlikely that the case would return to the District Court for trial and disposition before the election, so, in a Hail Mary move, Smith sought action by the Supreme Court to rule on the issue, bypassing the normal procedure. This week, without dissent or explanation, the Court rejected his request and the matter will be heard by the Court of Appeals. That court is predominantly Democrat and it’s more likely than not that it will sustain Judge Chutkan’s order. But it will take time for it to be heard and disposed of. Bill Shipley, the criminal lawyer who is handling a number of the January 6 cases (”Shipwreckedcrew” is his online moniker), predicts that Judge Karen Henderson on the panel will write an opinion -- whether concurring or dissenting -- and she will not go out of her way to speed up the decision, having already objected to the manner in which oral argument was set. Whenever that opinion is done, Trump has the option of seeking within 45 days a rehearing en banc (that is by the whole court, not just the present three-judge panel). Once the government has responded to that motion, the Court must decide whether to grant it, and that decision will take some time. If it is granted, a date for the rehearing will have to be set, arguments heard, and an opinion written. If the rehearing is denied, Trump has 90 days to seek certiorari -- that is a request to the Supreme Court to hear the case. This Supreme Court term ends in June, which would further delay the matter, probably to the fall of 2024. During all this, Judge Chutkan has no jurisdiction to handle the case. You can see that the March 4 plan for a trial is not in the works. Indeed, the chance of a trial taking place before the election is more than unlikely.

Further complicating matters, the Supreme Court just granted certiorari upon a petition by a person charged with obstructing an official proceeding on January 6 -- the Fischer case. And much of the case before Judge Chutkan uses the same arguments against Trump that are at issue in that case. Oral arguments in that case probably won’t be heard until sometime in March or April, and surely it will take time for an opinion by the Court, an opinion which has significant bearing on a great deal of Smith’s case. If the government loses that case, there will not be much left for Smith to prosecute should he, by some miracle, gets a trial before the election.

At the same time, Smith has a case pending in Florida before Judge Aileen M. Cannon in which Smith has charged Trump with mishandling classified documents. Judge Cannon already expressed doubt respecting Smith’s assurances that the D.C. trial would not overlap the May 20 trial date in Florida and has suspended all pretrial matters regarding Trump’s access to classified evidence -- a very lengthy process. As you can see, by taking his time to press charges and then going hog-wild on prosecuting Trump, Smith was hardly nimble and is now ensnared in a jumble of impossible deadlines and the kind of dilemmas a reasonable person would have expected had he sat for so long before trying to interfere with the election by instituting multiple cases. His strategy was weak and obvious, and he could not have reasonably expected the court would go along with this. Indeed, when asking the Supreme Court to bypass normal procedures, he tipped his hand that his concern was election-based.

If all this was not sufficient, there’s another problem of prosecutorial overreach that he and Attorney General Merrick Garland may well have difficulty overcoming. On November 18, 2022, when Garland appointed Smith as special counsel, Smith was not a U.S. Attorney, nor was he appointed to assist one.

He was not holding a position that required and got Senate confirmation as required by the Constitution’s Appointments Clause. He was outside the government, a private citizen. Last Wednesday, former U.S. Attorney Edwin Meese and law professors Steven Calabresi and Gary Lawson filed a friend of the court (amicus) brief with the Supreme Court which asserts Jack Smith was improperly appointed special counsel and therefore lacks any authority to represent the government in federal court.

In short form, the gist of their argument, which conforms to my reading of the statute and the Constitution, is this -- and it’s what sets him apart from prior special counsels like John Durham:

What federal statutes and the Constitution do not allow, however, is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title 'Special Counsel”. [snip] Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift or Jeff Bezos.

Steven Calabresi, no fan of Trump, details in full the trio’s arguments.

For those hoping that lawfare would give President Biden his best chance at reelection and pinned their hopes on Garland and Smith making the magic happen, this has been a no good, awful, terrible week.