07/21/2024

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Jack Smith, Donald Trump

‘Readily comports with the Constitution’: Jack Smith and Trump brawl over Supreme Court ruling’s ‘impact’ on claims that special counsel is unlawfully funded

Jack Smith (AP Photo/Jacquelyn Martin), Donald Trump (AP Photo/Alex Brandon, File)

Donald Trump’s lawyers and the Special Counsel’s Office on Tuesday followed the orders of the judge in the Mar-a-Lago classified documents case by submitting why or why not explanations on the “impact” of a recent U.S. Supreme Court case on defense claims about the illegality of Jack Smith’s funding.

In late May, U.S. District Judge Aileen Cannon issued an order ahead of a scheduled June 21 hearing where groups of amici curiae, non-party “friends of the court,” have been permitted to participate in oral arguments for and against Trump’s motion to dismiss the case.

While the Trump motion argues that the special counsel was unlawfully appointed and is unlawfully funded, arguments at least two of the conservative amici agree with, the special counsel argues he was, in fact, lawfully appointed by U.S. Attorney General Merrick Garland and is funded in a manner that doesn’t not run afoul of the Appropriations Clause of the Constitution. Another group of amici, composed of constitutional lawyers, former prosecutors, and, ex-high ranking government attorneys, supports Smith’s arguments.

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    In her order, Cannon “directed” the prosecution and the defense to discuss in supplemental briefs whether the Supreme Court’s mid-May ruling in Consumer Financial Protection Bureau v. Community Financial Services Association of America, had any “impact” on Trump’s unlawful funding claims.

    The SCOTUS decision, a 7-2 ruling by Justice Clarence Thomas that counted only Justices Samuel Alito and Neil Gorsuch as dissenters, held that the congressionally approved “funding mechanism” of the CFPB, an agency created during the Obama administration after the 2008 financial crisis, “complies with the Appropriations Clause.”

    “The Bureau does not have to petition for funds each year. Instead, Congress authorized the Bureau to draw from the Federal Reserve System the amount its Director deems ‘reasonably necessary to carry out’ the Bureau’s duties, subject only to an inflation-adjusted cap,” Thomas wrote, beginning to explain the majority’s view.

    Thomas further explained that for appropriations to be lawful under the Constitution they “need only identify a source of public funds and authorize the expenditure of those funds for designated purposes.”

    More Law&Crime coverage: Mar-a-Lago judge gives Trump and co-defendants a third extension to reveal expert witnesses in latest blow to Jack Smith

    On the other hand, Alito saw the ruling as carte blanche for the agency to “bankroll its own agenda without any congressional control or oversight” and a promotion of “maximum unaccountability.”

    The reason this is being mentioned at all is that the source of Jack Smith’s funding, as he described it, is a “permanent indefinite” congressional appropriation to “fund ‘investigations and prosecutions by independent counsel[.]’”

    For Smith, “Nothing in the CFPB decision aids Trump’s arguments.”

    “To the extent that decision is relevant, it makes clear that the appropriation used to fund the Special Counsel readily comports with the Constitution,” the special counsel said, arguing that the defense is mainly quibbling over a difference in language — namely, the appropriation is meant to fund an “independent counsel” (a position that does not exist anymore) not a “special counsel.”

    While Smith’s supplemental filing focused on the law, Trump’s, in multiple places, focused on politics.

    In language similar to the Alito dissent, the defense stated in conclusory fashion that Smith is being bankrolled to pursue an “election-interference mission.”

    “First, under CFPB, DOJ’s permanent indefinite appropriation is not available to fund Jack Smith’s election-interference mission because the designated purpose of the appropriation does not encompass Smith’s politically-motivated work,” the defense claimed.

    Trump lawyers also told Cannon that the funding of the special counsel is being used to wage “sprawling politically motivated lawfare,” claiming that AG Garland “unleashed Smith as a Biden campaign surrogate to try to harm President Trump’s campaign by any means necessary” and without real constraints, even as Smith maintains he is a lawfully appointed “inferior officer” under the Constitution “subject to” Garland’s “supervision and oversight.”

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    “It is unlikely, at best, that there is any source of funding at DOJ that could have funded the sprawling, politically-motivated activities that Smith has undertaken as if President Biden handed him a blank check,” the defense concluded, asking for an evidentiary hearing. “As we have noted, and as with any government agency, the realities of bureaucratic resource limitations have constrained DOJ’s work in the past.”

    Read the Trump and Smith filings here and here.

    The post ‘Readily comports with the Constitution’: Jack Smith and Trump brawl over Supreme Court ruling’s ‘impact’ on claims that special counsel is unlawfully funded first appeared on Law & Crime.