Jack Smith's Latest Argument Could Help Trump Enormously

Trump prosecutor Jack Smith has said his role is subservient to the attorney general, bolstering Trump's aim to eliminate all charges against him if elected president.

In his latest filing in the Mar-a-Lago classified documents case, Smith writes that the special counsel is not independent and is "inferior" to the attorney general, who can remove him or overrule any of his decisions. That lays the legal groundwork for Trump to appoint a favorable attorney general if elected for a second term in November.

Trump, the presumptive Republican candidate in the 2024 presidential election, has pleaded not guilty to 40 charges over allegations he illegally retained sensitive materials when he left the White House in January 2021 and then obstructed the federal attempts to retrieve them from his Mar-a-Lago estate in Florida.

In a separate federal case, Smith last year charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights in connection to the investigation. The charges were over the riot at the U.S. Capitol on January 6, 2021, and the alleged plot to submit false slates of pro-Trump electors to the Electoral College.

Trump maintains his innocence and has pleaded not guilty to all charges, accusing prosecutors of targeting him for political purposes.

Newsweek reached out to Trump's attorney via email for comment on Monday.

Speaking on his Spotify podcast Stay Tuned With Preet in October, Preet Bharara, a former New York federal prosecutor, said Trump would "almost certainly" appoint an attorney general who would kill the federal indictments if Trump's trials are not complete by then.

Smith's latest filing appears to strongly back that belief.

Smith was replying to an amicus, or "friend of the court" briefing by Edwin Meese, the former attorney general to President Reagan. In his submission to Judge Aileen Cannon, Meese argued that Smith was illegally appointed as a special counsel in both Trump's classified documents case in Florida and his election fraud case in Washington, D.C.

In rejecting this argument, Smith wrote to Cannon that the special counsel is not an independent entity but is an "inferior officer" under the terms of the U.S. Constitution's appointments clause.

"An inferior officer is one who reports to and is supervised by a superior officer," Smith's briefing states.

"The Special Counsel is an 'inferior Officer' under the Special Counsel regulation because the Attorney General supervises the Special Counsel's work, may remove him from office, and may review and countermand his decisions."

"And, as an additional means of exercising control, the Attorney General can rescind the regulation at any time, or amend the appointment order, and exercise direct statutory supervision over the Special Counsel," Smith states.

"The Special Counsel is subject to the Attorney General's supervision and oversight. The Special Counsel's work is overseen by the Attorney General, who appointed him and delegated to him powers that are otherwise vested in the Attorney General alone," he adds.

Bharara, the former United States Attorney for the Southern District of New York, said on his podcast that in federal cases relating to election interference and the hoarding of classified documents, Trump could simply pardon himself when he becomes president. This option would be controversial and likely litigated in court.

The second option, according to Bharara, would be for Trump to appoint a favorable attorney general to drop the federal charges. This was an option that Trump "almost certainly" would employ if elected president in 2024.

The third option is to claim immunity from prosecution, based on constitutional protections for a president for acts committed in office, Bharara added.