Tom Fitton is not a lawyer. Nevertheless, Donald Trump has already heeded the his legal advice once, and to disastrous effect.
Fitton, who leads the conservative advocacy group Judicial Watch, famously advised Trump that he didn’t have to return government records to the National Archives thanks to the now-infamous “Socks Case,” which involved recordings of Bill Clinton made for his biographer Taylor Branch and hidden in the president’s sock drawer at the White House. In 2012, Judicial Watch sued NARA, demanding that the agency declare the recordings presidential records and go seize them. Judge Amy Berman Jackson ruled that there was no private right of action to force NARA to make such a determination, and added some language indicating that NARA could not on its own initiative enforce the Presidential Records Act (PRA). From this, Fitton deduced that the PRA was unenforceable, and Trump could keep whatever he’d taken from the White House and tell NARA to pound sand. And according to CNN, that was all the encouragement Trump needed.
While Fitton was correct that the librarians from NARA couldn’t knock on the door at Mar-a-Lago with guns and demand that Trump give that stuff back, it seemed not to have occurred to him the Justice Department did have that authority. But thanks to Fitton’s advice, Trump and his valet Walt Nauta are now facing a 38-count indictment in the Southern District of Florida. So naturally, they’re heading back to their buddy Tom for some more words of wisdom.
Here’s Fitton today explaining why Special Counsel Jack Smith is illegal.
His theory of the case is that the special counsel regulation violates the separation of powers by empowering an “outside contractor” to “prosecute and run grand juries without being confirmed by the senate, as every US attorney is.”
The entire purpose of the special counsel regulation is to remove politically sensitive investigations from the immediate supervision of the executive branch. That’s why AG Garland appointed Jack Smith approximately ten minutes after Trump declared his intention to run again in 2024, and it’s why Rod Rosenstein appointed Robert Mueller in 2017.
Even as Trump and his allies howl about the “Biden DOJ” going after Trump, Fitton complains that lack of interference by Garland will allow Smith to “run a prosecution and try to jail someone without day-to-day supervision by someone who has the authority to do so.”
“I guess in theory you could have a US attorney made special counsel, and you wouldn’t run into that constitutional issue because the US attorney is confirmed by the Senate,” tacitly endorsing the prosecution of Hunter Biden by David Weiss, the US Attorney for Delaware who was tapped by Bill Barr to investigate the president’s son.
In point of fact, the Supreme Court upheld the independent counsel law in 1988’s Morrison v. Olson, and the current special counsel law which replaced it delegates significantly less power than its predecessor. And furthermore, the special counsel regulation was upheld by the DC Circuit in 2019, although Fitton attempts to wave this away.
“That was the question for Mueller as well, and I don’t think the DC courts bit. I don’t think anyone raised it,” he says, before conceding, “I think maybe one of the witnesses or targets raised it, but they didn’t get anywhere with the DC courts. But there’s a new court in Miami, and they may look at this afresh.”
Trump’s lawyers have already promised to give Judge Aileen Cannon the opportunity to “look at this afresh.” In their recent request to continue the case indefinitely, they wrote, “The authority, vel non, of the Special Counsel to maintain this action likewise presents a potentially dispositive issue of first impression in this Court,” adding later that “the Defendants anticipate pursuing Constitutional and statutory challenges relative to the authority of the Special Counsel to maintain this action.”
In fact, this is an issue of first impression in the Eleventh Circuit, although the Morrison decision would appear to be dispositive. We would, however, note that Fitton seems perfectly content to rest his legal conclusions about document retention on Judge Amy Berman Jackson’s “Socks” ruling, while yaddayaddayadda-ing her refusal to countenance a challenge to the special counsel regulation by Paul Manafort. So perhaps his understanding of binding precedent is … incomplete.
In summary and in conclusion, Donald Trump should absolutely, positively continue to let Tom Fitton dictate his legal strategy.
PS: This you, bro?