Jack Smith has no lawful authority, former attorney general says

 December 23, 2023

It's beginning to look like Jack Smith's plan to prosecute Donald Trump before the 2024 election won't come to fruition - but can Smith even prosecute Trump in the first place?

In a Supreme Court brief supporting Trump, former attorney general Ed Meese explained that Smith's "special counsel" position is a legal fiction.

Comparing Smith to the proverbial naked emperor, Meese, who served under President Reagan, said Smith has as much legal authority as Jeff Bezos and Taylor Swift.

"Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief states.

“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos."


The basis of Meese's argument is simple: Congress has not given the attorney general permission to magically grant sweeping prosecutorial power to private citizens like Smith.

"None of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel," Meese argued.

Even if Smith's position had some legal basis, he was not lawfully appointed by attorney general Merrick Garland.

The attorney general may appoint "inferior officers," but the AG must be explicitly granted this authority to overcome a "presumption in favor of presidential appointment and senatorial confirmation" as laid out in the Appointments Clause.

In the case of Smith, this threshold is even higher because he is a "senior officer." For example, Garland is not Smith's supervisor.

Thus, Smith "cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say.”

Supreme Court says NO

Meese urged the Supreme Court to shoot down Smith's petition to fast-track Trump's appeal in the dispute over whether he is immune to charges for "election subversion."

On Friday, the Supreme Court did exactly that, turning away Smith's bid to speed up the January 6th prosecution.

Separately, the Supreme Court has agreed to consider the appeal of a January 6th protester charged with one of the same crimes as Trump. That could delay Smith's trial even further.

Trump has accused Smith of trying to rush the case to trial in order to benefit Joe Biden's re-election bid, which is increasingly imperiled by Biden's poor approval ratings.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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