President Trump’s accusation that Attorney General Garland  “unleashed”  Special Counsel Jack Smith as a “Biden campaign surrogate” could soon take center stage at Judge Aileen Cannon’s courtroom. 

That allegation comes in a brief to Judge Cannon arguing that the special counsel’s appointment violates the Constitution’s Appropriations Clause, which ordains that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Mr. Smith contends that the “appropriation used to fund the Special Counsel readily comports with the Constitution.”

The briefs arrive at Judge Cannon’s docket after she asked both Trump and the government to reflect on how a recent Supreme Court case, CFPB v. Community Financial Services Association of America, affects the dispute over how Mr. Smith’s office is funded. The high court there held that the constitutional funding requires “a law that authorizes expenditures from a specified source of public money for designated purposes.”

By a seven to two margin, the justices held that the relevant question is whether a law “contains the requisite features of a congressional appropriation.” Trump contends that the “permanent indefinite appropriation that the Department of Justice is using to fund sprawling politically motivated lawfare by the Special Counsel’s Office” does not meet this standard. He adds that the special counsel has been given a “blank check” to pursue “politically-motivated activities.”

Mr. Smith, though, writes that the “permanent indefinite appropriation to fund the Special Counsel’s Office satisfies the Appropriations Clause.” The prosecutor points to Congress’s decree that the Department of Justice is empowered “to pay all necessary expenses of investigations and prosecutions” carried out by a lawfully appointed “independent counsel.”

The rub, though, is that, as Mr. Smith admits, the “Independent Counsel provision under the Ethics in Government Act faced criticism and was ultimately allowed to lapse” in 1999. Its demise was bipartisan. It was replaced by the regulations under which Mr. Smith operates. He can “be disciplined or removed from office only by the personal action of the Attorney General.”

Mr. Smith, though, maintains that the “permanent indefinite appropriation that funds the Special Counsel” abides even as the original statute has fallen into desuetude because Congress “sought to ensure that an independent counsel could carry out sensitive investigations.” Trump wants Judge Cannon to schedule an evidentiary hearing on whether Mr. Smith is improperly funded. The special counsel argues that is unnecessary. 

The contretemps comes as Mr. Smith is also fending off a challenge from Trump based on another stretch of constitutional bedrock, the Appointments Clause. Judge Cannon has set a hearing date of June 21 to determine whether the special counsel was constitutionally appointed because he was never nominated by the president and confirmed by the Senate. He was named by Mr. Garland two days after Trump announced his run for office.

Trump teases out a tension in Mr. Smith’s strategy for countering these twin challenges based on the Appropriations and Appointments Clauses. With respect to Appointments, the special counsel underscores that he reports to the attorney general and therefore cannot be a “principal officer” who would require the confirmation of the Senate. He can be removed for “good cause.”

When it comes to the Appropriations Clause, though, Mr. Smith posits that he is an “independent counsel” and therefore within the ambit of Congress’s allotment of funds. Trump, though, maintains that using “independent” in this way is so vague as to be meaningless. He writes that independence is  hardly a distinctive feature “for any attorney empowered to act on behalf of the United States. government in any capacity.”      

DOJ figures released in January disclose that Mr. Smith has spent more than $12 million prosecuting Trump. More than four million dollars was directed to the United States Marshal Service, which provides security for the special counsel and his team. The special counsel regulations mandate that a “Special Counsel shall be provided all appropriate resources by the Department of Justice.”