Will Jack Smith Go From Prosecutor to Defendant?

Jack Smith was appointed as a Special Prosecutor to criminally prosecute Donald Trump for any and all crimes he could find. He charged former President Trump in two major cases, one in South Florida, in connection with Trump’s retention of his Presidential Documents — something every previous President has done — and he charged him also in Washington, DC, in connection with the “insurrection” at the Capitol on January 6, 2021. In the Florida prosecution, Smith obtained search warrants (with lethal authority) to raid Mar-a-Lago, the former President’s and Melania Trump’s home in Palm Beach.

But apparently when Smith was appointed as Special Prosecutor by President Biden’s Attorney General, Merrick Garland, his appointment was not sent to the Senate for Confirmation. Garland said this was not necessary, that his authority to appoint Smith was all Smith needed. But the judge in the Federal Court in Miami, Aileen Cannon, after several years of legal wrangling in her courtroom, decided that the Special Counsel was appointed illegally — that his appointment was unconstitutional under the Appointments Clause — and therefore Smith had no authority to empanel a Grand Jury to issue an indictment or in any way to represent the United States as a prosecutor. Judge Cannon thereupon dismissed the “documents” case. Smith has appealed.

Meanwhile, in Washington, D.C., the January 6th case remains on the docket. The Judge in that case, Tanya Chutkan, is not required to accept Judge Cannon’s ruling that Smith’s appointment was unconstitutional, but the question is legitimately raised whether Smith can disregard that Order to continue acting as a U.S. prosecutor. Certainly, judges in one Federal District are not bound by rulings made in other circuits, but very likely Smith is violating Cannon’s Order by continuing to act as a Special Prosecutor and continuing to spend federal money without authority. Thus, the argument is made that while Judge Chutkan is not bound by Judge Cannon’s decision, Jack Smith is bound, until it is reversed by the appeals court.

But now the tables have turned. The power and authority are about to be rearranged. Donald Trump has won a decisive re-election and is now President-Elect (a title generally accepted, but not official until the Electoral College has voted). On January 20th at noon, he will be sworn in as President of the United States, and likely at 12:01 p.m., if Jack Smith hasn’t resigned by then, he will be fired, and there will be no one at the Trump DOJ to replace him. The Biden DOJ appears to recognize this fact, and there has been some talk about winding down the one-remaining D.C. prosecution, but so far nothing substantial has happened.

But where does this leave Jack Smith? The new Trump DOJ will not look kindly upon a man who a federal Judge found was unconstitutionally usurping authority to engage in what they will view as election interference, a federal crime without doubt, but a lesser crime than sedition, for which he may also be charged. Every day that passes now, without the cases being dismissed, may be said to be seditious. Smith is still the attorney of record on cases seeking to lock-up the President Elect. This is likely seditious activity. Whatever happens, this will be very interesting for the rest of us to watch, but to say that it will be unsettling for Jack Smith would be an understatement, as he may return to his courtroom, this time led in through the in-custody door and cuffed to his chair at the defendant’s table. Times have changed and Jack Smith may not have the sweet future he probably thought was his.