Special Counsel Jack Smith’s contention before Judge Aileen Cannon that the arguments that his appointment is unconstitutional are “meritless” and “groundless” could, in a possible second Trump term, come back to haunt him.

The filing from the special counsel comes in response to a brief authored by Attorney General Meese, who served in the Reagan administration, and two law professors, Steven Calabresi and Gary Lawson. They argue that Mr. Smith’s hiring violates the Constitution’s Appointments Clause because the prosecutor was not nominated by the president and confirmed by the Senate when he was plucked from the Hague and brought back to go after Mr. Trump. 

The Appointments Clause, which governs this issue, ordains that the president nominates and the Senate confirms “officers of the United States,” but that Congress may “vest” the power to appoint “inferior Officers” in “the President alone, in the Courts of Law, or in the Heads of Departments.” 

General Meese contends that the constitutional procedure was necessary because Mr. Smith is not what the national parchment calls an “inferior officer.” A special counsel, unlike a garden variety United States attorney — who is confirmed by the Senate — can rove across jurisdictions and only be fired for “good cause.”

President Trump argues that Mr. Smith’s appointment was unconstitutional because he is a principal officer and therefore must be appointed by the president and confirmed by the Senate. Mr. Smith maintains that he “is an inferior officer for whom presidential nomination and Senate confirmation is not required.” 

To prove that he is an inferior officer, the special counsel points to the reality that he is “subject to direction and supervision by a presidentially appointed and Senate-confirmed officer” — Attorney General Garland. General Garland, Mr. Smith argues, is a “head of department” in the parlance of the Constitution.  

The Supreme Court has held that the test for whether someone is a principal or inferior officer is whether he is subject to supervision and oversight by an official nominated by the president and confirmed by the Senate. In Morrison v. Olson, the justices held that an independent counsel, the precursor to today’s special counsels, “clearly falls on the ‘inferior officer’ side” of the line separating principal and inferior officers.

Justice Antonin Scalia issued a famous dissent in that case, arguing that even though the independent counsel was authorized “to perform only certain, limited duties,” the nature of how he was appointed — by a panel of judges, for an unlimited duration — “deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff.”

Mr. Smith aligns himself with the majority in Morrison rather than with Scalia’s warning in respect of the independent counsel, “this wolf comes as a wolf.” He observes that General Garland “may remove him from office, and may review and countermand his decisions.” The nation’s chief law enforcement officer can also rescind the special counsel regulation at any time, “or amend the appointment order, and exercise direct statutory supervision over the Special Counsel.” The attorney general serves at the president’s pleasure.

The special counsel regulations — put in place by Attorney General Reno after the independent counsel statute was allowed to expire — explain that such a prosecutor can be fired for  “misconduct, dereliction of duty … or for other good cause, including violation of Departmental policies.” Mr. Smith writes that the ability of Mr. Garland to fire him is a “strong mechanism of control.”

These arguments, while they could keep Mr. Smith on the case now, could end his service should Mr. Trump return to the White House. A new attorney general would likely cite the special counsel’s own words in pursuing his dismissal. Mr. Smith acknowledges that the removal of a special counsel would inevitably “end an investigation,” including the Mar-a-Lago and January 6 cases that Mr. Smith is leading against the president.

Mr. Trump is likely eager to avoid a reprise of the drama of his first term when Attorney General Sessions recused himself from supervising the investigation into alleged collusion between the Trump campaign and the Kremlin. His deputy, Rod Rosenstein, appointed Special Counsel Robert Mueller. Attorney General Barr supervised the conclusion of the investigation. Neither interfered with Mr. Mueller’s work. 

Should Mr. Trump win in November, though, it is likely that his attorney general would be called upon to exercise the “strong mechanism of control” that Mr. Smith has explicated. This could involve withdrawing charges and dropping the cases. Additionally, Department of Justice regulations prohibit prosecuting a sitting president. 

Mr. Trump could also elect to pardon himself of any federal charges — or convictions — secured by Mr. Smith. The Constitution mandates that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” No president, though, has ever applied that power to himself.