This Week in Lawfare: Is Jack Smith’s Appointment Unconstitutional?

After last week’s circus in Manhattan, President Trump secured two major victories this week in pending criminal cases in Georgia and Florida.

In Florida, Judge Aileen Cannon expanded a late June hearing to allow President Trump’s attorneys and constitutional experts to argue that the appointment of Special Counsel Jack Smith was unconstitutional.

In Georgia, the criminal case against President Trump is now stalled until the first week of October, when the Georgia Court of Appeals will tentatively hear oral arguments on whether District Attorney Fani Willis should be disqualified from the case. This delay essentially guarantees that the Georgia criminal case will not go to trial before the November election.

Back in New York, President Trump awaits sentencing on July 11.

Here’s the latest information you need to know about each case.

Read our previous installments here.

Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment

How we got here: In this New York state criminal case, Manhattan District Attorney Alvin Bragg — who The New York Times acknowledged had “campaigned as the best candidate to go after the former president” — charged former President Donald Trump with 34 felony charges for alleged falsification of business records. Trump’s former attorney Michael Cohen paid pornographic film actress Stormy Daniels shortly before the 2016 presidential election as part of a nondisclosure agreement in which she agreed not to publicize her claims that she had an affair with Trump (who denies the allegations). Nondisclosure agreements are not illegal, but Bragg claims Trump concealed the payment to help his 2016 election chances and in doing so was concealing a “crime.”

This criminal trial concluded on May 30, with the jury returning a guilty verdict on all 34 felony counts of falsifying business records. This case marks the first time a former U.S. president has been convicted of a felony. President Trump is expected to appeal the verdict.

The conviction does not affect President Trump’s ability to run for president, though it may present complications with his ability to run a modern presidential campaign. For instance, if he were to receive a sentence including home confinement, he may be forced to request permission from a New York State bureaucrat for permission to travel to hold a campaign rally.

Latest developments: Following last week’s conviction, President Trump will be sentenced on July 11.

Trump’s legal team has also requested that his gag order be lifted since the trial has now concluded. However, District Attorney Alvin Bragg has opposed Trump’s request to lift the gag order. The request is still pending before the Biden-donor judge.

Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results

How we got here: The Georgia state criminal case is helmed by District Attorney Fani Willis and her team of prosecutors — which until recently included Nathan Wade, with whom Willis had an improper romantic relationship. Willis charged Trump in August 2023 with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. This case is currently stalled while the Georgia Court of Appeals hears an appeal on whether Willis should be disqualified from the case.

Latest developments: On Wednesday, the Georgia Court of Appeals set a hearing date for Oct. 5 to determine whether District Attorney Fani Willis should be disqualified from the case for an “improper” affair with a former prosecutor. The case is now stalled until the Oct. 5 hearing, after which the court will have to rule on the appeal.

This delay essentially guarantees that this criminal case will not go to trial prior to the November election.

Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents

How we got here: In this federal criminal case, special counsel Jack Smith and federal prosecutors with Biden’s Justice Department charged former President Trump in June 2023 with 40 federal charges related to his alleged mishandling of classified documents at his Mar-a-Lago residence. In early May, Judge Aileen Cannon postponed this trial indefinitely.

Latest developments: On Tuesday, Judge Aileen Cannon expanded a hearing later this month to allow Trump’s attorneys and constitutional experts to opine on whether the appointment of Special Counsel Jack Smith was unlawful. Among these constitutional experts is Ed Meese, who served as attorney general under President Ronald Reagan. In his amicus brief, Meese argues that Attorney General Merrick Garland’s appointment of Special Counsel Smith violates the U.S. Constitution’s Appointments Clause. The hearing will take place on June 21.

Washington, D.C.:  Prosecution by Biden DOJ for Jan. 6 Speech

How we got here: In this federal criminal case, Special Counsel Jack Smith charged former President Trump with four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. President Trump’s lawyers have argued that immunity extends to actions taken by a president while acting in his official capacity and that, in any event, the First Amendment protects his right to raise legitimate questions about a questionable election process.

Latest developments: This case is currently stalled while awaiting a ruling from the Supreme Court on former President Trump’s immunity claim.

New York: Lawsuit by A.G. Letitia James for Inflating Net Worth

How we got here: In this New York civil fraud case, Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump under a civil fraud statute alleging that he misled banks, insurers, and others about his net worth to obtain loans, although the loans have been paid back and none of the parties involved claimed to have been injured by the deals. Following a no-jury trial, Judge Arthur Engoron — whom Trump’s lawyers have accused of “astonishing departures from ordinary standards of impartiality” — issued a decision in February ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond.

Latest developments: This case mostly remains on hold.