https://dailypresser.com/doug-g/allegations-of-procedural-missteps-surface-against-special-counsel-jack-smith/Allegations of Procedural Missteps Surface Against Special Counsel Jack Smith
Doug Goldsmith
6 min read
Recent allegations have been raised concerning the appointment process of John Lumen Smith, also known as “Jack Smith,” for his role as Special Counsel.
As per Order No. 5559-2022 issued by Attorney General Merrick B. Garland on November 18, 2022, Smith’s appointment was made in response to the need for an independent investigation into possible criminal activities related to former President Donald Trump’s 2024 presidential campaign.
Critics have questioned the validity of this appointment, observing that unlike other department heads with the power to appoint inferior officers, the Attorney General may not have been vested with such authority in this case since Smith was not Senate-confirmed for his office.
Furthermore, doubts have been cast over the timing of his affidavit compliance and oath of office taking upon his appointment.
Edwin Meese, former Attorney General under President Ronald Reagan, alongside Professors Gary Lawson and Steven Calabresi, filed a petition to the Supreme Court last week requesting a writ of certiorari in response to Jack Smith’s (John Lumen) petition for expedited appeal of his ruling on immunity.
In their petition, they argued that since Smith was hired directly by current Attorney General Merrick Garland, the constitutional process involving presidential nomination and Senate confirmation was circumvented.
As such, they maintained that any legal actions taken by Smith while acting as Special Counsel are invalid.
They further asserted that only individuals appointed to legitimately established federal offices can carry out such actions with validity.
The petition reads in part:
The illegality addressed in this brief started on November 18, 2022, when Attorney General Merrick Garland exceeded his statutory and constitutional authority by purporting to appoint Smith to serve as Special Counsel for the Department of Justice.
…
But none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.
What federal statutes and the Constitution do not allow, however, is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title “Special Counsel.”
Now, concerns regarding the appointment of Special Counsel John L. Smith (Jack Smith) have come up.
Under 5 U.S. Code § 3332, “An officer, within 30 days after the effective date of his appointment, shall file with the oath of office required by section 3331 of this title an affidavit that neither he nor anyone acting in his behalf has given, transferred, promised, or paid any consideration for or in the expectation or hope of receiving assistance in securing the appointment.”
The initial SF 61 was signed by Smith on November 20, 2022; however, due to the lack of a witness signature, corrective action was taken and a new SF 61 was executed 298 days after the appointment, on September 14, 2023.
This meets the requirement for any federal position appointee to file an appointment affidavit within 30 days of assuming office.
From: U.S. Department of Justice/ Justice Management Division/ Human Resources:
MEMORANDUM FOR THE RECORD
SUBJECT: Oath of Office, John L. Smith
EXECUTIVE SUMMARY: This memorandum serves as record that an appointment affidavit (SF 61) has been signed and executed for the appointment of John L. Smith, Special Counsel. On November 18, 2022, John L. Smith was appointed by Attorney General Merrick B. Garland to serve as the Special Counsel by Order No. 5559-2022.
DISCUSSION: Mr. Smith signed an SF 61 on November 20, 2022. Upon reviewing documentation, it was discovered that a witness signature was missing (more than likely as Mr. Smith was on boarded while overseas). JMD/Human Resources consulted with the JMD/Office of General Counsel (OGC) to ensure proper corrective action. OGC’s recommendation and advice was to readminister the oath of office and execute a new SF 61 to ensure procedural compliance.
Attachments
A. Attorney General Order 5559-2022
B. SF 61, signed and executed on 9/14/2023
C. SF 61, signed on 11/20/2022
Source: U.S. Department of JusticeOn June 8, 2023, Jack Smith issued a grand jury indictment against former President Trump on federal criminal charges related to his handling of classified documents.
Subsequently, on August 1, 2023, Trump was indicted on additional felony counts relating to attempts to overturn the 2020 presidential election and his conduct during the Capitol event.
However, it appears that Smith did not complete signing the “Oath of Office” as mandated by 5 U.S. Code § 3332 until September 14, 2023 – 298 days after assuming office – due to a missing witness signature.
This procedural misstep raises questions about the validity of Mr. Smith’s official actions prior to this date and opens up the possibility for jurisdictional challenges questioning whether he acted under lawful authority between his appointment and the signing of a corrected appointment affidavit in September 2023.
Generally speaking, failure to take an oath is considered a failure to properly complete an appointment process which could render any actions taken by Mr. Smith invalid.
Jack Smith’s SF 61
The complexity of the situation is heightened by the fact that Mr. Smith may have filed the indictment under the name “Jack Smith” instead of his legal name, “John Luman Smith,” which was acknowledged by him.
According to New York Law, it is not permissible to practice law using a name different from that under which one was licensed without receiving formal approval for a name change from the Appellate Division.
From TGP:
The Gateway Pundit has sought insight from legal experts on both the discrepancy in names and the delayed oath.
Regarding the name discrepancy, one lawyer opined, “Since John/Jack are related names I’d expect them to punt on this. Or allow him to remedy/cure quickly… The court will interpret Jack as a form of John and say where’s the harm? He’s signing for himself.”
However, on the oath of office matter, the same legal expert posited, “A court should take it seriously. They might dismiss it as ceremonial. But it’s a solid argument.”