Trump’s Former Impeachment Lawyer David Schoen Points Out One Legal Argument Trump Can Use To Avoid Charges

Former President Donald Trump’s former impeachment lawyer, David Schoen, laid out one legal argument Tuesday on CNN the former president’s team may be able to use to avoid charges in the Jack Smith case.

Trump appeared in court Tuesday for oral arguments before a three-judge panel.

Trump’s team is arguing that he is immune from criminal prosecution because he was acting within the official capacity as president, Schoen explained. The second argument is that Trump cannot be tried again because he was acquitted in his second impeachment trial, Schoen continued.

But Schoen said an additional argument could possibly help Trump. (RELATED: ‘Never Saw A Badge’: Trump Co-Defendant Describes Altercation With Armed FBI Agents In Unearthed Bodycam Footage)

“Keep your eye on the additional argument, the amicus as provided in this case that the court said they want to ask questions about. And that is whether Jack Smith’s appointment was constitutional under the appointments clause, Article 2, Section 2, Clause 2 of the Constitution. That’s a big question. There’s a law review article that two of the amici who filed the brief, Calabresi and Lawson, it was rejected when raised in the context of Mueller, but it’s a very interesting and complicated argument.”

“It would essentially say, looking at that, that it’s a supremacy clause argument, right? That it’s an inferior officer and you can’t do that. Do you think that that argument would work, David? It’s getting the least amount of attention. It’s a novel legal concept. If it didn’t work in 2019, do you think it has any chance here?” CNN’s Poppy Harlow asked.

“What Calabresi and Lawson have said … is that the court in 2019 never really analyzed it. They see it as an open and shut question under the appointments clause that clearly there’s no authority of the attorney general to appoint special counsel for this kind of role. The president had to have appointed him, he’s not an inferior officer. I think they happen to be right on the argument. Politically is it a palatable argument at this point? I don’t know. You know, this is not an easy panel either for the president. On paper, you would say it looks like 2 to 1 against, but I don’t think those are very fair or good judgments to make. I’ve seen commentators make that but you never know, I assume all judges are going to be fair and look at it on the facts and law. ”

Northwestern University Pritzker School of Law professor Steven G. Calabresi, Boston University School of Law professor Gary S. Lawson and former U.S. Attorney General Edwin Meese filed an amicus brief in December arguing Smith’s appointment was unconstitutional and therefore he does not have the authority to bring the charges he has against the former president.

Smith was not nominated by President Joe Biden nor confirmed by the Senate but rather was appointed by Attorney General Merrick Garland.

The brief argues Garland “exceeded his statutory and constitutional authority” in appointing Smith and therefore “every action that [Smith] has taken since his appointment is now null and void.”

“We do not want future U.S. attorney generals, such as the ones Donald Trump might appoint, if he is reelected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” the brief states. “Think of what that would have led to during the McCarthy era.”

The D.C. Circuit Court of Appeals hinted last week it may consider questions about Smith’s appointment, asking parties in an order to be prepared for questions about “discrete issues” raised in amicus briefs.