Special Counsel Jack Smith has been on his back foot for the past month and things aren't getting easier with Judge Aileen Cannon beginning to dig into the DOJ's oversight of the case.
Smith's indictment of former President Donald Trump has ground to a halt amid multiple legal setbacks for Smith, including a filing arguing that Smith's appointment was unconstitutional.
Trump's lawyers want the case dismissed because Smith was improperly appointed to lead the prosecution.
As Smith was not an employee of the Department of Justice and was a private citizen, he required Congressional approval to be set up as a Special Counsel.
Attorney General Merrick Garland ignored this requirement and bypassed Congress by appointing Smith and Judge Cannon appears receptive to the arguments from Trump's lawyers.
Smith's indictment of Trump for supposedly mishandling classified documents was sketchy from the beginning.
Like the other indictments against Trump, Smith's case reeked of partisan politics. From the moment federal agents were raiding the home of a former president, Americans knew that something was wrong.
Smith's case has faltered repeatedly thanks to the facts of the case and Judge Cannon's willingness to actually judge fairly. Unlike in New York, Trump isn't dealing with a judge who is already convinced that he is guilty.
The Washington Post reported that one Trump attorney, Emil Bove, "argued that because Garland has repeatedly said Smith is acting independently, the special counsel should be considered a ‘principal officer’ — a top government official who has no immediate supervisor and whose appointment requires Senate approval."
This argument led to an exchange between Judge Cannon and Smith's team who obfuscated and seemed to annoy Judge Cannon by not giving straight answers to her questions.
After Friday's exchange, former U.S. Attorney General Michael Mukasey told Breitbart News that, "While Congress previously established an office similar to a special counsel called an 'independent counsel,' that statute expired in 1999 and although Congress – which created the Department of Justice – authorizes an ‘officer’ authority and powers similar to those Garland granted Smith, those officers require presidential appointment and senatorial confirmation."
So the question is why did Merrick Garland not pick a federal prosecutor to avoid any chance of this becoming a problem?
Judge Cannon clearly is interested based on the testy exchange between Cannon and Smith's team.
It's possible that Cannon could rule that Smith's appointment was unconstitutional which would completely destroy the case against Trump. Worse for Democrats, it would further vindicate Trump's claims that he is being politically persecuted.
