Jack Smith finally ends a $90 million legal assault on Trump, but leaves vexing DOJ issue unsettled

Three special prosecutors and at least $90 million later, Donald Trump remains standing, unscathed and now free of any federal criminal charges. It’s a herculean feat certain to be written into the annals of legal and political history.

“I think the federal cases are over. They are done with, and nobody should say that President Trump is under indictment for federal cases,” famed Harvard law professor Alan Dershowitz declared Monday on his daily podcast The Dershow, dismissing any possibility the president-elect will be charged again in the same matters after he leaves office.

“Now they are going to say, 'Well, yeah technical reasons.' No, they are not technical reasons. They are constitutional. And remember Trump didn’t have a chance to defend himself,” he also said.

But Special Prosecutor Jack Smith’s simultaneous dismissals Monday of a Jan. 6 election subversion case in Washington and a classified records case in Florida left behind one vexing question that could restrain future investigations of major political figures in America.

Where the appointments of both Smith and previous Russia collusion special counsel Robert Mueller constitutional?

Both men were appointed by attorneys general without having been a Senate-confirmed U.S. attorney. Trump’s legal team decided not to challenge the legality of Mueller’s appointment in part because he never charged the president with crimes.

But Trump’s attorneys proceeded with a challenge to Smith on the grounds that his special counsel appointment without Senate approval violated the Appointments Clause of the U.S. Constitution. Unlike many past DOJ special counsels, Smith wasn’t a sitting U.S. attorney and came from an international court without Senate confirmation.

Trump got a winning ruling from U.S. District Judge Aileen Cannon this summer, which remains on the books as the lone declaration on the issue.

“The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers,” Cannon wrote in July. “The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. 

“If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause,” she also said.

In short, Cannon declared DOJ can only appoint a sitting U.S. attorney as special counsel. And if the department goes outside that pool of candidates, it must seek a Senate confirmation under the Appointments Clause for the special counsel to be empowered to prosecute crimes.

The issue was pending in the 4th U.S. Circuit Court of Appeals when Smith filed a motion to dismiss Trump from the case since he is a soon-to-be-sitting president who is immune from prosecution while in office.

“Dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him,” Smith wrote. “The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them.”

With Trump – the covered elected official who required the special counsel appointment to be made in the first place – now dismissed from the case, the appellate judges will have to decide whether to proceed with the appointments clause challenge with the two remaining defendants, Trump aides Walt Nauta and Carlos de Oliveira.

A new DOJ under Trump could render the case moot by withdrawing the charges or changing its position in the case from the Biden-era team, or Trump could issue pardons for Nauta and de Oliveira. Or it could let the appeals proceed – perhaps all the way to the U.S. Supreme Court – to settle the case law all the way.

Such optionality is certain to be watched closely in legal circles and inside the DOJ, and the final outcome is certain to shape the future of politically sensitive prosecution that might require special counsel appointments.

Meanwhile, the sheer magnitude of cost of the eight-year lawfare against Trump waged by the Justice Department is coming into clear focus. Mueller and his deputy, Andrew Weissmann, spent $32 million before writing a report saying there was not evidence to charge Trump with any alleged conspiracy with Russia to hijack the 2016 election.

A subsequent special prosecutor, John Durham, spent a comparative bargain of just $7.6 million before writing a report concluding that the FBI didn’t even have a legal basis to investigate Trump in the Russia matter.

And then Smith and his deputy, Jay Bratt, have reported spending over $50 million through this summer, with that bill still rising. 

For taxpayers, at least $90 million was spent to hire special counsels to prove whether Trump committed crimes, and he now stands declared innocent in all federal matters.

Yes, other defendants went down in the process. But conservatives have a powerful argument to begin a second Trump term with: The large financial bill and the eight years of political capital hardly seemed worth it. In fact, it may have created an opposite effect than what Democrats had hoped.

“For nearly eight years, Bob Mueller, Andrew Weissmann, Jack Smith, Jay Bratt, and other political operatives have spent nearly $100 million attempting to destroy President Trump and his America First movement,” said former Senate Judiciary Committee lawyer Mike Davis, the the founder of the Article III Project.

“This unprecedented Democrat lawfare and election interference backfired spectacularly in the Supreme Court and the lower federal courts, with even the appointment of a special counsel declared unconstitutional,” Davis added. “And this backfired spectacularly on November 5th, when the American people delivered our verdict.”