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 regains the presidency could set in soon a constitutional institution. clash—and possible dismissal.

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

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

If Trump wins, he could begin the process of removing Mr. Smith at 12:01 a.m. on Jan. 20, immediately after he takes the oath of office. That would take the form of an order to the Attorney General – to fire Mr. Smith. This is because the relevant regulations require that “a special counsel may be disciplined or removed from office only by the personal action of the Attorney General.”

The same rules, the work of Attorney General Reno, require 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 department policies.” The attorney general “shall inform the special counsel in writing of the specific reason for his withdrawal.” The Sun spoke to a lawyer, 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 “good cause” be provided to justify such a move. The special counsel is already appealing 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 Jan. 6 case.

The prosecutor, in order to keep his job, would have to convince the courts — and likely the Supreme Court — that suspending 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 Morrison v. Olsonreasoned that a predecessor of today’s special counsel, the independent counsel, violated this single 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 willing to reverse Morrison. Last year, Judge Kavanaugh called it one of the court’s “biggest mistakes” 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 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 avoid termination, will likely have to face the high court’s ruling on immunity in Trump vs. the United States. That holding reversed the special counsel’s prosecution of Trump for Jan. 6, ruling that official presidential records are presumptively immune. The Nine also held that acts that are part of the president’s “conclusive and exclusive” constitutional authority enjoy “absolute immunity.”

This mapping of presidential prerogative means that, as Chief Justice Roberts writes, when it comes to the center of presidential control over the executive branch, “Congress cannot act upon the actions of the president, and the courts cannot review the actions of the president. . . . Nor can the courts judge a penalty. prosecution examining such presidential actions.”

Mr. Smith would probably reply that another case, United States v. Nixonappears to give attorneys general the authority to appoint subordinate prosecutors. If Democrats hold the House of Representatives next week and Trump wins the presidency and fires Mr. Smith, another possibility could loom — a third impeachment against Trump shortly after he begins a second term.

It is Trump who, in the case of immunity, has argued that impeachment is the main — and possibly only — means of holding presidents accountable for illegal behavior. The Supreme Court found, however, that “turning 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 Nation’s Government.”

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

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