Why Donald Trump Is Wrong About Jack Smith

Jack Smith's position as special prosecutor is legal, despite Donald Trump's angry claims over Christmas, a constitutional law professor has said.

Peter Shane, a lecturer at New York University, was reacting to Donald Trump's December 26 post that claimed Smith has no legal standing to be special counsel in charge of Trump's federal indictments.

Shane told Newsweek that "there is statutory authority for the appointment of special counsel—28 USC 515," a federal law that permits an attorney general to appoint a special counsel for either criminal or civil cases.

"The attorney general or any other officer of the Department of Justice[...]may conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings," the law states.

It adds that a special counsel, or special attorney, should be sworn in by oath.

"Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the attorney general or special attorney, and shall take the oath required by law."

In August, Smith indicted Trump on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol.

Separately, Smith indicted Trump in June on 37 counts related to his alleged handling of classified materials, accusing the former president of repeatedly refusing to return hundreds of documents containing classified information. In August, Smith added three additional felony charges in the classified-documents case. Trump pleaded not guilty to all charges.

The two federal cases are among four criminal cases that Trump is facing while he campaigns for the 2024 primary as frontrunner for the Republican presidential nomination.

He has also pleaded not guilty to charges in the other cases, denying any wrongdoing, and has repeatedly said that they form part of a political witch hunt. Newsweek sought email comment on Wednesday from Trump's attorney.

In a block-capital post on social media site Truth Social on Christmas Eve, Trump wrote: "JOE BIDEN'S MISFITS & THUGS, LIKE DERANGED JACK SMITH, ARE COMING AFTER ME, AT LEVELS OF PERSECUTION NEVER SEEN BEFORE IN OUR COUNTRY??? IT'S CALLED ELECTION INTERFERENCE. MERRY CHRISTMAS!"

On December 26, Trump wrote that Smith had no legal authority to be special counsel:

"Smith is a Crooked Prosecutor who shouldn't even be allowed to be in the position he is in—It is Prosecutorial Misconduct. The Great Ed Meese from the Ronald Reagan Era has him figured perfectly!" he wrote.

On December 20, former President Reagan's attorney general, Edwin Meese, filed an amicus brief to the Supreme Court arguing that Smith's appointment is illegal.

An amicus brief is defined as an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case.

The brief was in relation to Smith's unsuccessful attempt to have the Supreme Court decide rapidly on whether Trump has presidential immunity from prosecution.

Meese's filing claims U.S. Attorney General Merrick Garland improperly appointed Smith as special counsel and that he has no power to do so.

Meese was joined in his amicus brief by Steven Calabresi, the co-chairman of conservative legal organization the Federalist Society, and Gary Lawson, a constitutional law professor at Boston University, in arguing that only Congress can create the special counsel position that Smith holds.