Cannon's willingness to hear arguments about Jack Smith's constitutionality shows that either she is profoundly incompetent, or, more likely, extremely biased

 I asked ChatGPT which gave me the answer that most completely addressed my questions:

Is jack smith appointment constitutional?

Jack Smith's appointment as Special Counsel to oversee investigations, such as the ones into former President Donald Trump, raises important questions about its constitutionality. The constitutionality of such appointments generally revolves around the Appointments Clause of the U.S. Constitution, which governs the process for appointing federal officers.

1. Appointments Clause:

   • The Appointments Clause is found in Article II, Section 2, Clause 2 of the U.S. Constitution. It differentiates between "principal officers" and "inferior officers."
   • Principal officers must be appointed by the President with the advice and consent of the Senate.
   • Inferior officers can be appointed by the President alone, by the heads of departments, or by the Judiciary.

2. Special Counsel Position:

   • Special Counsels are typically considered "inferior officers" because they operate under the supervision of a higher-ranking official within the Department of Justice (DOJ), such as the Attorney General.
   • This classification allows for their appointment without the need for Senate confirmation.

3. Legal Precedents:

   • The Supreme Court case Morrison v. Olson (1988) upheld the constitutionality of the independent counsel provisions of the Ethics in Government Act, which is similar to the Special Counsel position. The Court ruled that the independent counsel was an inferior officer because they were subject to removal by a higher executive branch official.
   • More recently, the case of United States v. Arthrex, Inc. (2021) reaffirmed the distinctions between principal and inferior officers.

4. Current Context:

   • If Jack Smith was appointed by the Attorney General, it would be in line with the traditional practice for appointing Special Counsels. Given that the Special Counsel operates under the authority of the DOJ and can be removed by the Attorney General, the position aligns with the designation of an "inferior officer."

In summary, based on the principles established by the Appointments Clause and reinforced by Supreme Court precedents, the appointment of Jack Smith as Special Counsel is likely constitutional as he would be considered an inferior officer appointed by the head of a department (the Attorney General).

Do inferior officers need to be employees of the government before being appointed special counsel?

Inferior officers do not necessarily need to be current employees of the government before being appointed as Special Counsel. The key considerations are their duties, the degree of supervision they are under, and how their appointment aligns with the Appointments Clause of the U.S. Constitution.

Here are some pertinent points:

1. Definition and Duties:

   • Inferior officers are defined more by the nature of their duties and their relationship to higher-ranking officials than by their employment status prior to appointment.
   • The duties of a Special Counsel typically involve conducting investigations and prosecutions, but they do so under the supervision and control of the Attorney General, which fits the criteria for an inferior officer.

2. Appointment Mechanism:

   • The Appointments Clause allows inferior officers to be appointed by the President alone, the heads of departments, or the Judiciary.
   • There is no constitutional requirement that these individuals must be government employees before their appointment. What matters is their role and the supervisory structure they operate within once appointed.

3. Precedents and Practices:

   • Historically, Special Counsels have sometimes been appointed from outside the existing government workforce. For example, Robert Mueller was appointed as Special Counsel after having previously served as FBI Director but was not a current government employee at the time of his appointment.
   • The appointment of Special Counsels from outside the current government workforce is not unusual and aligns with past practices.

4. Legal Considerations:

   • The Supreme Court has not specifically mandated that inferior officers must be current government employees. The focus remains on their duties, scope of authority, and the supervisory relationship they have with higher officials.

In conclusion, there is no constitutional or legal requirement that inferior officers, such as Special Counsels, must be current government employees before their appointment. The critical factors are their functions, their subordinate status to a higher-ranking official, and compliance with the Appointments Clause.

Can you show me the Appointments Clause as it relates to inferior officers, in the U.S constitution?

The Appointments Clause of the United States Constitution is found in Article II, Section 2, Clause 2. It outlines the process for appointing federal officials, including both principal and inferior officers. Here is the relevant text as it relates to inferior officers:

"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

This clause specifies that while the President generally appoints principal officers with the advice and consent of the Senate, Congress has the authority to allow the appointment of inferior officers without Senate confirmation. This can be delegated to the President alone, the courts, or department heads.

So does it mean that the attorney general is implicitly given the power to appointed a special counsel without the congress's approval ?

The Appointments Clause does provide a framework that allows certain officials to appoint inferior officers without Senate confirmation, but whether this applies to a special counsel depends on how the position is classified and the specific legal and regulatory framework governing such appointments.

A special counsel is typically considered an "inferior officer" rather than a "principal officer." This classification has significant implications:

1. Principal Officers: These include positions like the heads of executive departments (e.g., the Attorney General) and other high-level positions that typically require Presidential nomination and Senate confirmation.

2. Inferior Officers: These include positions that are subordinate to principal officers and whose work is directed and supervised at some level by others who were appointed by Presidential nomination and Senate confirmation.

Under the Appointments Clause, Congress has the power to vest the appointment of inferior officers in the President, the courts, or the heads of departments.

In practice, the Attorney General has the authority to appoint a special counsel based on regulations established by the Department of Justice (DOJ). These regulations are rooted in statutory authority granted by Congress. For example, the DOJ regulations at 28 CFR Part 600 provide a detailed process for the appointment of a special counsel by the Attorney General (or Acting Attorney General if the Attorney General is recused).

The key points are:

• Authority: The Attorney General's ability to appoint a special counsel derives from the statutory and regulatory framework established by Congress.
• Inferior Officer: A special counsel is generally considered an inferior officer, which means Congress can (and has) delegated the power of appointment to the Attorney General.

Therefore, while the Appointments Clause itself does not directly state that the Attorney General can appoint a special counsel, it provides the constitutional basis for Congress to allow this delegation. Congress has exercised this authority by enacting statutes and allowing the DOJ to establish regulations that grant the Attorney General the power to appoint a special counsel without needing further congressional approval for each specific appointment.

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Trump's lawyers are also making the weirdest point in that Jack Smith is "too independant" and part of some "deep state"cabal against Trump while the whole point of a special counsel is to have independence to avoid any risk of interference. Politico eloquently makes this point:

"Special counsels — sometimes referred to as special prosecutors — are typically appointed in politically sensitive cases in which the Justice Department may have a conflict of interest. Though earlier conceptions of the position enjoyed near total independence, the regulations in effect for the past two decades require special counsels to report to the attorney general, though they still have significantly more independence than regular federal prosecutors.
The validity of special counsel appointments has been relatively uncontroversial in recent years, with courts routinely rejecting challenges to their authority."