a new argument The fact that special counsel Jack Smith is in office illegally underscores how his Mar-a-Lago case against President Trump hangs in the balance, even if the 45th president loses the vote.

That case is being brought before the 11th U.S. Circuit of Appeals by 20 Republican attorneys general. They want that court to uphold Judge Aileen Cannon’s ruling that Attorney General Garland’s appointment of Mr. Smith was flawed.

Judge Cannon not only ruled that Garland lacked the legal authority to hire Smith without Senate confirmation, she determined that his hiring was so flawed that she dismissed the charges against Trump and his two co-defendants. Mr. Smith has appealed, pointing out that special counsel has been used to prosecute Confederate President Jefferson Davis, as well as some members of the cabal that assassinated President Lincoln.

Republican officials maintain that Smith twice indicted the “main political rival of the current ruling regime” even as he faces “almost zero presidential accountability” because he was neither appointed by the president nor confirmed by the Senate. The attorneys general accuse Mr. Smith of “initiating arguably the most politically sensitive criminal prosecution in American history.”

He friends I cite the Framers for the proposition that “supervising and controlling subordinate executive officials was itself an exercise of executive power that ultimately belonged to the President.” This is because the Constitution confers all executive power on the president and orders that he –exclusively– “shall see that the laws are faithfully executed.”

The attorneys general, however, write that the “stated purpose of Special Counsel Smith’s appointment was to remove responsibility—and therefore political accountability—for investigations and prosecutions under his purview from the current Administration.” Garland appointed Smith to his position two days after Trump declared his intention to retake the White House.

The special prosecutor, the friends argues, now has the “unilateral” task of resolving “politically fraught and high-consequence issues, such as whether a former president and a current presidential candidate should be impeached and what position the United States will take on whether a president enjoys immunity from to a criminal process, and to what extent.” .” The Supreme Court in Trump against the United States He maintained that official presidential acts are presumptively immune.

Mr. Smith maintains that the possibility of special prosecutors was present from the time the Department of Justice was founded in 1870. Its statutes require that “the Attorney General may, when he deems expedient in the interest of the United States , conduct and argue any case in which the government is interested, in any court of the United States.” All functions of the Department of Justice “are vested in the Attorney General.”

The Supreme Court in United States vs. Nixon appeared to support the position that the attorney general could appoint subordinate prosecutors. That is Mr. Smith’s opinion. However, Judge Cannon came to the surprising conclusion that the portion of the unanimous opinion that addressed the powers of the attorney general was not binding, or was an opinion. She understood that the issue “was not raised, reported, argued or questioned” and that the court’s passing observations on that point are not binding.

The attorneys general augment Judge Cannon’s reasoning by arguing that Mr. Smith’s powers mean that he is not a mere factotum for Mr. Garland, but rather is an inexplicable locus of prosecutorial power who has the ability to, as the Justice Antonin Scalia on another high court. case, Morrison v. Olson“pick the man and then search the law books to blame him for some crime.”

If Mr. Smith is, as friends As they argue, a “mini executive who holds the keys to significant executive power,” then his appointment required more than just Mr. Garland’s signature. It would require the process outlined in the Constitution’s Appointments Clause for officials who exercise more than simply derived authority: nomination by the president and confirmation by the Senate.

The problem for attorneys general is that the special counsel regulations require that such a prosecutor “may be disciplined or removed from office only by personal action of the Attorney General…for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of departmental policies.” A “specific reason” for your dismissal must be presented in writing.

Trump has promised to fire Smith “within two seconds” of taking the oath of office if he wins the election. The Supreme Court in MorrisonHowever, he ruled (only Scalia dissented) that for-cause restrictions regarding a special counsel were not affronts to presidential prerogatives. The attorneys general maintain that MorrisonThe logic of “has been completely repudiated.” Judge Brett Kavanaugh expressed his desire in 2018 to “put the final nail” in the case. this summerHe described it as “one of the Court’s biggest errors.”

Justice Clarence Thomas has indicated he feels the same way. If the 11th Circuit upholds Judge Cannon and the D.C. Circuit in the Jan. 6 case upholds Mr. Smith, the Nine could have a chance to revisit him. Morrison. The Supreme Court, the friends They write, they must be the ones to “pull the plug” on that precedent and vindicate Scalia’s dissent.