Fox News contributor and George Washington University law professor Jonathan Turley laid out two big “torpedoes” that could hurt Jack Smith’s case against former President Donald Trump.
Trump appeared in court Tuesday for oral arguments before a three-judge panel. The former president’s legal team is arguing that he cannot be tried again because he was acquitted in his second impeachment trial and that Trump is immune because he was acting within his official capacity as president.
“There is a number of torpedoes in the water here. One is time, which you mentioned. Most of us expressed skepticism about the March 4th date. It seems even less likely now if that date is missed, can they get a trial in before the election? Keep in mind this is a motivated panel that is likely to issue an opinion quickly. But the Trump campaign can ask for review en banc for the full court and then they can go to the Supreme Court and that will eat up the clock,” Turley explained. (RELATED: ‘Never Saw A Badge’: Trump Co-Defendant Describes Altercation With Armed FBI Agents In Unearthed Bodycam Footage)
“There is also another marginal issue here. A respected law professor at Northwestern, named Steven Calebresi, has filed briefs that he thinks there is a problem with Smith himself. That he and others believe that Smith’s appointment is unconstitutional. Now that’s the ultimate Hail Mary play but the panel seems to be giving it serious consideration. It doesn’t mean they are buying that argument, but it will be interesting if it comes up today.”
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.
The brief argues that Smith was unconstitutionally appointed by Attorney General Merrick Garland rather than having been appointed by President Joe Biden or confirmed by the Senate.
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 asked the parties last Tuesday to be prepared for questions about “discrete” issues raised in amicus briefs, possibly hinting they may consider the question’s about Smith’s appointment.
Turley warns of the “most dangerous legal theory” being used to target Trump:
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