President Trump’s vow to fire Special Counsel Jack Smith “within two seconds” of a possible return to the White House and that the prosecutor’s job status would be “one of the first things addressed” if he wins back the presidency could soon set up a constitutional clash — and a possible impeachment. 

Trump made his intentions clear on Thursday to radio host Hugh Hewitt, who  told the 45th president that if he becomes the 47th he would either have to pardon himself “or fire Jack Smith” and asked, “Which one will you do?” Trump reckoned that the choice would be “so easy” and that it would involve giving Mr. Smith a pink slip. The Sun has reported before on that possibility. 

Mr. Smith was a one time Department of Justice lawyer prosecuting war criminals at The Hague before Attorney General Garland hired him to build the cases against Trump for election interference and the hoarding of documents at Mar-a-Lago. In another interview over the weekend Trump ventured that Mr. Smith “should be thrown out of the country.” What’s not clear is what would happen should Mr. Smith refuse to go — and litigate his fate in court.

If Trump wins, he could begin the process of removing Mr. Smith at 12:01 PM on January 20, right after he takes the oath of office. That would take the form of a command to the attorney general–  to fire Mr. Smith. That’s because the relevant regulations mandate that a “special counsel may be disciplined or removed from office only by the personal action of the Attorney General.”  

Those same rules, the handiwork of Attorney General Reno, mandate that the “Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The attorney general “shall inform the Special Counsel in writing of the specific reason for his or her removal.” The Sun spoke to a legal scholar, Joshua Blackman, who reckons that a new attorney general could repeal the regulations unilaterally. 

If Mr. Smith is fired, he could mount a legal challenge centered on the requirement that “good cause” be furnished to justify such a move. The special counsel is already appealing to the 11th United States Appeals Court to reverse Judge Cannon’s ruling that Mr. Garland’s appointment was bereft of statutory authority. Trump could mount a mirrored challenge in the January 6 case. 

The prosecutor, to keep his job, would have to convince courts — and likely the Supreme Court — that staying the president’s hand is consistent with the Constitution’s command that “The executive Power shall be vested in a President of the United States of America.” Justice Antonin Scalia, in the case of Morrison v. Olson, reasoned that a predecessor to today’s special counsel, the independent counsel, ran afoul of that sole grant of power. 

Nearly 40 years ago the court’s other justices disagreed, but it appears that at least two current justices  — Clarence Thomas and Brett Kavanaugh – are open to reversing Morrison. Last year Justice Kavanaugh called it one of the court’s “biggest mistakes” and a “terrible decision for the presidency and for the country.” That could suggest a willingness to authorize the president to order the firing of a special counsel. 

During Trump’s first term, Attorney General Sessions recused himself from Special Counsel Robert Mueller’s investigation, which was overseen by a deputy attorney general, Rod Rosenstein. Trump did not fire Mr. Mueller, just as President Biden did not move against Special Counsel John Durham.

Mr. Smith, to stave off termination, would likely also have to contend with the high court’s immunity ruling in Trump v. United States. That holding has upended the special counsel’s prosecution of Trump for January 6 by determining that official presidential acts are presumptively immune. The Nine further held that acts that are within the president’s “conclusive and preclusive” constitutional authority enjoy “absolute immunity.”

That mapping of presidential prerogative means that, as Chief Justice Roberts writes, when it comes to the heartland of presidential control over the executive branch,  “Congress cannot act on, and courts cannot examine, the President’s actions … Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions.”

Mr. Smith would likely respond that another case, United States v. Nixon, appears to grant attorneys general the authority to name subordinate prosecutors.  If Democrats hold the House of Representatives next week and Trump wins the presidency and fires Mr. Smith, another possibility could come into focus — a third impeachment against Trump, not long after he begins a second term. 

It is Trump, who, in the immunity case, has argued that impeachment is the primary — and possibly the sole— means to hold presidents accountable for illegal conduct. The Supreme Court, though, found that “transforming the political process of impeachment into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of the Nation’s Government.”

Even if Mr. Smith manages to keep his job, Mr. Blackman tells the Sun that Department of Justice regulations against prosecuting  a sitting president could mean the special counsel would need to “put his pencil down.”

The Mar-a-Lago case against Trump’s co-defendants could go forward — if the riders of the 11th Circuit reverse Judge Cannon. The DOJ’s own guidelines note that the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”