Tom Fitton’s claims about Jack Smith’s legal authority don’t add up

Tom Fitton, president of the conservative activist group Judicial Watch and an informal adviser to Donald Trump, has a new talking point: Special counsel Jack Smith lacks the authority to prosecute the former president because he wasn’t confirmed by the Senate. That claim is wrong, and his reasoning is riddled with problems. But it does allow Fitton to advance the political goal of riling up the right using a throw-anything-at-the-wall-and-see-what-sticks strategy — and promoting unwarranted suspicion of the Justice Department.   

Fitton posted a video Tuesday in which he said he was “skeptical” that Smith had the “constitutional authority” to run investigations because he hadn’t been confirmed by the Senate, unlike an attorney general. It echoes a point some on the right, including Trump, made years earlier claiming special counsel Robert Mueller lacked authority under the Constitution to conduct his investigation. The implication of these narratives is that the Justice Department is going rogue by letting unregulated outsiders seize control of hugely important legal matters.

But that’s not what’s happening. An attorney general appoints a special counsel under “extraordinary circumstances” or to avoid the possible appearance of conflict of interest — in this case, the optics of a Biden-appointed official pursuing the incarceration of a political opponent. Special counsels don’t require Senate confirmation, but under the Code of Federal Regulations, they should have reputations for impartiality and “informed understanding of the criminal law and Department of Justice policies.” Smith fit the bill — he had worked in the Justice Department, and before he took the special counsel position, he was the chief prosecutor investigating war crimes in Kosovo for the special court in The Hague.

Fitton, who isn’t a lawyer, doesn’t have an impressive track record of providing against-the-grain legal advice to Trump.

Fitton correctly points out in his video that special counsels aren’t supervised day to day by the attorney general. But they can be overruled by the attorney general and fired for misconduct, and they are expected to comply with Justice Department regulations and procedures. Which is to say that while they do have a lot of autonomy, they don’t have absolute, uncontestable power. 

In 2017, Trump complained that Mueller’s appointment was unconstitutional, although he didn’t specify why. At the time, a number of legal scholars pointed out that while the Supreme Court hasn’t specifically ruled on the constitutionality of special counsels, legal rulings about their predecessors — independent counsels — suggest that special counsels are compatible with the Constitution.

Independent counsels were appointed in the late 20th century to investigate matters like the Iran-contra scandal during the Reagan administration. They operated outside the Justice Department and had more freedom than special counsels do today (which is part of why the practice of appointing them was discontinued). But even with that greater level of freedom, the Supreme Court ruled that independent counsels were constitutional and recognized them as “inferior” officers, not “principal” officers. That designation means that under Article II, Section 2, Clause 2 of the Constitution, they don’t require Senate confirmation. And if independent counsels are “inferior” officers, then the special counsels who hold even less independent authority certainly qualify as such.

Fitton, who isn’t a lawyer, doesn’t have an impressive track record of providing against-the-grain legal advice to Trump. He told Trump that he could legally keep the classified documents that landed him the first federal indictment of a former president in American history. That poor judgment call doesn’t appear to have humbled him.

It also shouldn’t go unobserved that under the Trump administration, Attorney General William Barr appointed John Durham as special counsel. As Republicans eagerly awaited the results of his investigation into whether the FBI had acted inappropriately in its investigations of Trump’s possible links to Russia, they didn’t wail about his illegitimacy under the Constitution.

Fitton’s claim that Smith has a “constitutional problem” doesn’t hold water. Once again, he seems to be leading the right astray on a legal question. Yet among political sympathizers, he may still fulfill the project of depleting distrust in the legal proceedings against the former president as he faces a growing pile of indictments.