Jack Smith's appointment as special counsel faces potential challenges as the U.S. Court of Appeals for the District of Columbia Circuit has advised counsels in Smith's criminal case against Trump to be prepared to address issues raised in an explosive amicus brief during the scheduled January 9 oral arguments.

The court's announcement followed the filing of the amicus brief by attorneys for former Attorney General Ed Meese, who argued that Jack Smith's appointment by U.S. Attorney General Merrick Garland is unconstitutional.

Appeals Court to Consider Constitutionality of Jack Smith’s Appointmenthttps://t.co/C5fYJr07f9

— Mark R. Levin (@marklevinshow) January 4, 2024

The case

Meese, along with Steven Calabresi and Gary Lawson, contended that Garland improperly appointed Smith to a non-existent office, lacking the required authority.

Former President Donald Trump criticized Smith's appointment on Truth Social.

“Biden’s Flunky, Deranged Jack Smith, should go to HELL. He is helping his Corrupt and Incompetent President to destroy America through Weaponization and ELECTION INTERFERENCE! Smith is a Crooked Prosecutor who shouldn’t even be allowed to be in the position he is in — It is Prosecutorial Misconduct. The Great Ed Meese from the Ronald Reagan Era has him figured perfectly!" Trump wrote.

calling him a "Crooked Prosecutor" and accusing him of aiding President Biden in destroying America through weaponization and election interference.

Smith had sought to expedite his case against Trump for alleged attempts to overturn the 2020 election, aiming for a conviction before the 2024 presidential election.

The U.S. Supreme Court rejected Smith's request for a quick review of Trump's case for presidential immunity.

The appeal

Now, the case is expected to follow the normal process in the appeals court, potentially reaching the Supreme Court. The validity of Smith's appointment may be a crucial aspect to address first.

The amicus brief filed by Meese, Calabresi, and Lawson argues that Smith lacks the authority to represent the United States as the office he holds has not been created by Congress, violating the Constitution's "Appointments Clause."

They assert that only Congress can establish federal offices, and in the absence of such authorization, Smith's appointment is unconstitutional.

The brief

The brief contends that even if special counsels were authorized by Congress, Smith's appointment would still require presidential nomination and Senate confirmation.

The argument suggests that Smith, given the extraordinary powers akin to a U.S. Attorney, is a "principal officer" under the Constitution and should have undergone the nomination and confirmation process.

The appeals court may consider these constitutional arguments, and if accepted, it could lead to the dismissal of all of Smith's prosecutions.

This could include pending charges against Trump. Oral arguments are scheduled for January 9, 2024.