The heat on Special Counsel Jack Smith is being turned up after an amicus brief was filed by a former prosecuting attorney on behalf of Donald Trump.
Robert W. Ray, a prosecuting attorney who served during the Clinton-Lewinsky case, believes that Smith needs to be removed.
He is leaning into the argument that Justice Clarence and Judge Cannon used to support disqualifying Smith.
It’s Illegal
The rule for how a special counsel can be named was put in place during the Watergate era, and that rule has more or less served as the standard for the last five decades.
Ray contends that Watergate was a special case, therefore, that should not be the rule, only the exception.
In his brief, he wrote, “From the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation.
“And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had ‘unique authority and tenure.’
“Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal, thereby establishing Watergate as a unique case.”
This rule has never been challenged until now, but I find it hard to believe that the Supreme Court’s majority would make a ruling that would, in effect, nullify five decades of special counsel findings.
In this day and age, however, it would not be completely shocking.
Having said that, I still believe this is a bit of a stretch and that, ultimately, this line of attack to have Smith removed will fail.
On the flip side, it drags out the process, keeping this case out of the courtroom, likely, until after inauguration day, which means it is unlikely to ever see the inside of a courtroom anytime soon.
