Judge Aileen Cannon, who presides over the Mar-a-Lago documents case, appears open to President Trump’s argument that Special Counsel Jack Smith was unconstitutionally appointed, a possibility that could rock the prosecution of the 45th president. 

The judge has telegraphed her curiosity about the disqualification of the special counsel in an unusual docket note. The question has hung over the special counsel from the start. Judge Cannon, though, ventured that two briefs supporting Mr. Trump’s position that Mr. Smith’s appointment was defective “bring to the Court’s attention relevant matter that may be of considerable help to the Court in resolving the cited pretrial motions.”

One of those briefs, filed by the America First Legal Foundation, the group founded by Mr. Trump’s longtime adviser, Stephen Miller, concerns the role played by the National Archives and Records Administration in charging the 45th president. Another brief, authored by a former attorney general, Edwin Meese, who is 92, and two law professors, Steven Calabresi and Gary Lawson, takes the position that Mr. Smith’s appointment was “unlawful.”

Judge Cannon’s judgment that the brief “may be of considerable help” suggests that she is taking seriously Mr. Trump’s constitutional contention — made both to her and before the Supreme Court in the January 6 case that Attorney General Garland’s choice of Mr. Smith violated the Appointments Clause. 

That section of the national parchment ordains that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

Mr. Smith, it turns out, was not nominated by the president and was not confirmed by the Senate. His appointment was solely at the discretion of General Garland. Mr. Meese et al. — and Mr. Trump — contend that Mr. Smith “does not have authority to prosecute this case.” The key designation, the former president and ex-attorney general argue, is that Mr. Smith is not an “inferior” officer of the United States but a “principal” officer — and thus requires Senate confirmation.

There could have been another way, Mr. Smith’s opponents argue. Mr. Garland could have appointed an already-serving United States attorney, who would have been confirmed by the upper chamber as a prerequisite for taking office. Mr. Meese maintains, though, that General Garland “cannot appoint a private citizen or government employee, who was never confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel.”’

In his own brief, Mr. Trump writes that “because neither the Constitution nor Congress have created the office of the ‘Special Counsel’ Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires,” or beyond duly delegated legal authority. Unlike regular United States attorneys, Mr. Smith is not limited by restrictions on jurisdictions. Before being appointed, he was prosecuting war crimes at the Hague. Mr. Meese calls his appointment a “potentially fatal flaw in this entire prosecution.” 

In the version of this brief submitted to the high court, Mr. Meese argued that “not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”

The specter of a prosecutor as usurping emperor has worried constitutionalists since the passage of the Ethics in Government Act of 1978, which created a three-judge panel to appoint special prosecutors — later called independent counsels. The law mandated that they could only be fired for “good cause” by the attorney general. While this arrangement was challenged — forcefully — by Justice Antonin Scalia, it was affirmed by the Supreme Court. 

The Ethics in Government Act, though, lapsed, unmourned by either party, in 1999. That was after the Lewinsky affair. That same year, Attorney General Reno promulgated regulations creating an Office of Special Counsel that allows for the appointment of an “outside Special Counsel to assume responsibility for the matter.”  

The question for Judge Cannon, though, is whether such a regulation has the force of a statute and the constitutional bona fides needed to create a federal office under the Appointments Clause. Judge Cannon has given Mr. Smith until March 15 to respond to this challenge to his case. He, though, is not the only prosecutor who now must defend his suitability for office.