A Victorious Trump Could Ignite a Constitutional Crisis If He Fires Jack Smith — and the Special Counsel Refuses to Leave

President Trump’s promise to fire Special Counsel Jack Smith “within two seconds” upon his possible return to the White House, and his promise that the prosecutor’s status would be “one of the first considerations” if he regains the presidency, could soon become a constitutional amendment . conflict – and possible impeachment.

Trump made his intentions clear to radio host Hugh Hewitt on Thursday. Hewitt told the 45th president that if he became the 47th president, he would either have to pardon himself “or fire Jack Smith” and asked, “Which are you going to do?” he asked. Trump calculated that the election would be “very easy” and that it would involve giving Mr. Smith a pink slip. there is sun reported before this possibility.

Mr. Smith was a Justice Department lawyer prosecuting war criminals at the Hague before Attorney General Garland hired him to build cases against Trump for election interference and document hoarding at Mar-a-Lago. In another interview over the weekend, Trump had the nerve to say Mr. Smith “should be kicked out of the country.” What is not clear is what will happen if Mr. Smith refuses to go and sues his fate in court.

If Trump wins, he could begin the process of impeaching Mr. Smith at 12:01 a.m. on Jan. 20, just after he takes the oath of office. This would take the form of ordering the attorney general to fire Mr. Smith. Because the relevant regulations provide that “a private lawyer can only be subject to disciplinary punishment or be dismissed by the personal action of the Chief Public Prosecutor”.

The same rules, the work of Attorney General Reno, mandate that “the Attorney General may remove the Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause, including violations of Department policies.” The attorney general “shall notify the special counsel in writing of the specific reason for the dismissal.” The Sun spoke to legal expert Joshua Blackman, who thinks a new attorney general could unilaterally repeal the regulations.

If Mr. Smith is fired, he can file a legal challenge, requiring “good cause” to be provided to justify such an action. The special counsel is currently petitioning the 11th United States Circuit Court of Appeals to vacate Judge Cannon’s ruling that Mr. Garland’s appointment lacked legal authority. Trump may launch a similar challenge in the Jan. 6 case.

To keep his job, the prosecutor will have to convince the courts and possibly the Supreme Court that holding the president’s hand is consistent with the Constitution’s mandate that “Executive power shall be vested in the President of the United States.” Justice Antonin Scalia in the case Morrison/OlsonHe thought that the independent counsel, the predecessor of today’s special counsel, was at odds with this single grant of authority.

Nearly 40 years ago, the court’s other justices disagreed, but it appears that at least two current justices (Clarence Thomas and Brett Kavanaugh) are open to reversing the decision. morrison. Judge Kavanaugh last year called it one of the court’s “greatest mistakes” and a “terrible decision for the presidency and the country.” This might suggest a desire to give the president the authority to order the removal of a special counsel.

During Trump’s first term, Attorney General Sessions recused himself from Special Counsel Robert Mueller’s investigation, which was being led by deputy attorney general Rod Rosenstein. Trump did not fire Mr. Mueller, just as President Biden did not take action against Special Counsel John Durham.

Mr. Smith will also likely have to deal with the high court’s immunity ruling to avoid termination. Trump / United States. That arrest upended the special counsel’s Jan. 6 investigation into Trump, establishing that official presidential acts are presumptively untouchable. The Nine also argued that actions within the president’s “definitive and preemptive” constitutional authority have “absolute immunity.”

Mapping presidential prerogative means that when it comes to the center of presidential control over the executive branch, as Chief Justice Roberts wrote: “Congress cannot act on the President’s actions, and the courts cannot review the President’s actions… Nor can the courts convict a criminal. “The prosecutor’s office that investigates such Presidential actions.”

Mr. Smith would probably respond on another occasion as follows: United States / NixonIt appears to give attorneys general the authority to name junior prosecutors. If Democrats meet next week in the House of Representatives and Trump wins the presidency and fires Mr. Smith, another possibility could arise: A third impeachment could come up shortly after Trump begins his second term.

In the immunity case, it was Trump who argued that impeachment was the primary and arguably only way to hold presidents accountable for illegal conduct. However, the Supreme Court ruled that “transforming political impeachment into a necessary step in the application of criminal law finds little support in the text of the Constitution or the structure of the National Government.”

Even if Mr Smith manages to keep his job, Mr Blackman told the Sun that Justice Department regulations against prosecuting a sitting president could mean the special counsel must “put down his pen”.

The Mar-a-Lago case against Trump’s co-defendants could move forward if 11th Circuit challengers overturn Judge Cannon. The Justice Department’s own guidelines note that “impeaching or criminally prosecuting a sitting President would unconstitutionally undermine the capacity of the executive branch to discharge its constitutionally appointed functions.”