President Trump’s pledge to fire special counsel Jack Smith “within two seconds” of his eventual return to the White House and the fact that the prosecutor’s professional status would be “one of the first issues discussed” if he wins back the presidency could soon put in place a constitutional system. clash – and possible impeachment.

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

Mr. Smith was a former Justice Department lawyer prosecuting war criminals in The Hague before Attorney General Garland hired him to build the case against Trump for election interference and document hoarding at Mar-a-Lago. In another interview this weekend, Trump said Mr. Smith “should be kicked out of the country.” What is unclear is what would happen if Mr. Smith refused to leave and pleaded his fate in court.

If Trump wins, he could begin the process of impeaching Mr. Smith at 12:01 p.m. on January 20, just after he is sworn in. This would take the form of an order to the Attorney General: to fire Mr. Smith. Indeed, the relevant regulations state that a “special advocate may only be disciplined or removed by the personal action of the Attorney General.”

These same rules, the work of the Reno Attorney General, require that the “attorney general may remove a special counsel for misconduct, dereliction of duty, incapacity, conflict of interest or for any other good cause, including violation of policies of the ministry. The Attorney General “shall inform the Special Counsel in writing of the specific reason for his or her dismissal.” The Sun spoke to a legal expert, Joshua Blackman, who believes a new attorney general could unilaterally repeal the regulations.

If Mr Smith is fired, he could launch a legal challenge centered on the requirement that a “good reason” be provided to justify such a decision. The special prosecutor has already appealed to the 11th United States Circuit Court of Appeals to overturn Judge Cannon’s ruling that Mr. Garland’s appointment lacked statutory authority. Trump could launch a mirror challenge in the January 6 case.

The prosecutor, to keep his job, would have to convince the courts – and probably the Supreme Court – that keeping control of the president is consistent with the Constitution’s commandment that “the executive power shall be vested in a President of the United States of America.” Justice Antonin Scalia, in the case Morrison v. Olsonfound that a predecessor of today’s special counsel, the Independent Counsel, had violated this one 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 willing to overturn the decision. Morrison. Last year, Justice Kavanaugh called it “one of the biggest mistakes” by the Court and a “terrible decision for the presidency and for the country.” This 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 an assistant attorney general, Rod Rosenstein. Trump did not fire Mr. Mueller, just as President Biden did not act against Special Counsel John Durham.

Mr Smith, to avoid dismissal, would likely also have to face the High Court’s immunity ruling in the case Trump v. United States. The decision upended the special prosecutor’s prosecution of Trump on January 6 by determining that official presidential acts are presumptively immune. The Nine further held that acts that fall within the “conclusive and exclusive” constitutional authority of the president benefit from “absolute immunity.”

This mapping of presidential prerogatives means that, as Chief Justice Roberts writes, when it comes to the heart of presidential control over the executive branch, “Congress cannot act and courts cannot review actions.” of the president… Nor can the courts try a criminal case.” lawsuit that examines such presidential actions.

Mr. Smith would probably answer that another case, United States v. Nixonappears to grant attorneys general the power to appoint subordinate prosecutors. If Democrats occupy the House of Representatives next week and Trump wins the presidency and fires Mr. Smith, another possibility could present itself: a third impeachment of Trump, shortly after the start of his second term.

It was Trump who, in the immunity case, argued that impeachment is the primary — and perhaps only — way to hold presidents accountable for their illegal conduct. The Supreme Court, however, held that “transforming the political process of impeachment into a necessary step in the application of criminal law finds little support in the text of the Constitution or in the structure of the national government.”

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

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