The argument against Smiths appointment is that he was a private citizen and did not go through the defined appointment process.
Durham was serving as an officer of the court and had already been through the appointment process, thus allowing AG Barr to legally appoint him as Special Counsel.
———————
Attorneys who authorize the investigation and prosecution of federal crimes must be officers of the United States because they wield significant government power. Under the clause, there are just two ways of qualifying as an officer of the United States: the appointee must either be (a) nominated by the president and confirmed by the Senate, or (b) appointed to a position that “shall be established by law” — which is to say, by a congressional statute.
Smith, who has run the Trump investigations since his SC appointment by Garland on November 18, 2022, was not appointed under either of those procedures. To the contrary, he was purportedly appointed under the Justice Department’s SC regulations.
https://www.nationalreview.com/corner/andy-mccarthy-on-why-jack-smith-appointment-was-unconstitutional/