U.S. District Court Judge Aileen Cannon began hearing arguments Friday that U.S. Attorney General Merrick Garland’s appointment of Jack Smith as special counsel is unconstitutional.
Cannon asked each side several questions regarding DOJ’s historical use of special counsels and prosecutors. Presenting for the attorneys general, Citizens United, and constitutional scholars, Gene Schaerr took the position that the district court should follow the canon of constitutional doubt. Under that principle, when a federal law can be interpreted two ways, one of which would raise serious questions about whether it was constitutional, but the other a narrower interpretation that is clearly allowed by the Constitution, a federal court must choose the latter.
“Joe Biden can’t beat Donald Trump at the ballot box, and that’s why Joe Biden’s lawfare is happening,” said David Bossie, the president of Citizens United, who along with Meese and Mukasey is challenging Smith’s appointment as unconstitutional. “Our lawyers did a great job of explaining why Jack Smith’s appointment is unconstitutional, because Congress has not passed a statute creating his office.