Special prosecutor Jack Smith is already under the magnifying glass for what many feel is an unconstitutional appointment to his position as lead persecutor in the Donald Trump witch trials. 

The frequently-raised debates over Smith’s appointment as a special prosecutor hinge on whether it follows the rules outlined in the U.S. Constitution’s Appointments Clause. Smith was chosen as a special counsel to investigate and prosecute Trump. The Office of Special Counsel, where Smith serves, was formed for specific cases, but Congress hasn’t officially established the position. 

An amicus brief, signed by former U.S. Attorney General Edwin Meese and two law professors, argues that Smith’s appointment violates the Constitution. According to the brief, Garland overstepped his legal and constitutional authority by appointing Smith in November 2022. The Appointments Clause mandates that all federal offices not explicitly outlined in the Constitution must be lawfully established. However, no law specifically creates the Office of Special Counsel within the U.S. Department of Justice. Moreover, no statute permits the attorney general to appoint an inferior officer like Smith with the authority vested in him. 

If Smith’s appointment is found unconstitutional, every action he has taken since his appointment could be invalidated. Smith’s jurisdiction spans nationwide, granting him more authority than any of the 93 Senate-confirmed U.S. attorneys. The correct procedure for appointing federal officers involves presidential nomination, Senate confirmation, and presidential appointment. 

The matter is under near-constant legal scrutiny, with multiple legal briefs raising doubts about the constitutionality of Smith’s appointment. 

However, Representative Elise Stefanik (R-NY) has offered another potential roadblock to Smith. She boldly claims what Americans already know – Smith is deliberately interfering with the 2024 election, a charge for which he has ironically indicted Trump.  

In a recently filed ethics complaint, Stefanik notes that Smith is “attempting to expedite” the election interference case to “influence the general election.” In the complaint, she said that Smith is trying to rush Trump’s January 6 case more than once. She wrote that DOJ policies explicitly prohibit Smith’s attempts to schedule the trial for maximum impact just before the election. 

Federal prosecutors are prohibited from strategically timing legal actions to benefit or harm any candidate or political party. However, Smith, according to Stefanik, sought a January 2 trial date by filing a request with the U.S. District Court for the District of Columbia. 

Smith tried to bypass DOJ policies and regulations again by attempting to accelerate the trial process through the Supreme Court, bypassing the federal appellate procedure. However, on December 22, the court rejected his plea. 

Stefanik points to another example just a few months later, when Smith fought Trump’s attempts to skip the appellate courts and take his presidential immunity claims directly to the United States Supreme Court. 

Smith has repeatedly claimed that the nation has a “compelling interest” in the speedy conclusion of the case. It’s a motive Stefanik questions in her complaint. 

 “Aside from the upcoming election, what ‘compelling interest’ does the public have in the prompt resolution of this case?” she asks, questioning why this alleged public interest should “override the due process rights of a criminal defendant.” 

But Stefanik has Manhattan District Attorney Alvin Braggs in her sights as well. In a separate statement on Tuesday, Stefanik referenced Bragg’s criminal case against Trump, covering his alleged fraud related to a payment to Stormy Daniels before the 2016 general election. Stefanik characterized the case as an attempt at “lawfare” and interference in the presidential campaign. She criticized Bragg for pursuing weak charges, claiming they stemmed from a non-felony issue that would, for a typical defendant, only be considered a misdemeanor. Stefanik further suggested political motivations, alleging that a top political appointee from the Biden Justice Department was involved in targeting Trump. She also raised concerns about the judge presiding over the case, Juan Merchan, and his Democratic campaign donations, along with the millions of dollars his daughter has raised from the case. 

Stefanik filed her ethics complaint with the DOJ’s Office of Professional Responsibility earlier this week. She took to social media to explain her actions, posting, “At every turn, he has sought to accelerate his illegal prosecution of President Trump for the clear (if unstated) purpose of trying him before the November election.” She went on to add that it should be evident to any “reasonable” person that Smith is interfering with the 2024 election to stop Americans from voting for Trump. 

Stefanik’s ethics complaint will undoubtedly be dead on arrival at the DOJ. However, her actions, while likely not doing anything to stop Trump’s persecution at the hands of the emboldened and panicked Biden administration, shed light on the plot and may help Americans see the ploy for precisely what it is.