Attorney General Merrick Garland defended his appointment of special counsel Jack Smith on Tuesday as the department appeals a ruling finding he was wrongly appointed, saying he wouldn’t make such a “basic mistake.”
Garland, in an interview with NBC News, noted that he chose to sit down with the outlet at the Justice Department’s law library.
“For more than 20 years I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don’t think so,” Garland said.
The remarks were a nod to a decision from Judge Aileen Cannon earlier this month tossing out a federal case against former President Trump over his handling of classified documents at his Mar-a-Lago residence.
Cannon sided with Trump’s attorneys and concluded Smith’s appointment was not lawfully appointed. The ruling came as a shock to many legal observers who had described Trump’s motion as a long-shot bid given the largely settled law around appointing special counsels.
Smith’s team has appealed the ruling, and is due to file a brief in the case at the end of next month.
Garland on Tuesday ran through a series of cases in which other special counsel appointments were upheld by various courts.
“Our position is that it’s constitutional and valid. That’s why we appealed. I will say that this is the same process of appointing special counsel as was followed in the previous administration, and for special counsel Durham and special counsel Mueller, multiple special counsels over the decades, going back to Watergate and the special prosecutor in that case,” Garland said.
“Until now, every single court, including the Supreme Court, that has considered the legality of a special counsel appointment, has upheld it.”
Cannon in her 93-page ruling described the matter as a separation of powers issue that robs Congress of the ability to weigh executive branch appointees.
“The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers,” Cannon wrote.
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.”
