Jack Smith's appointment to special counsel in Trump case unconstitutional, leader claims

 December 21, 2023

Jack Smith's appointment as special counsel is deemed unconstitutional and the Supreme Court is urged to reject his petition against Donald Trump, according to a brief filed on Wednesday by lawyers representing former Attorney General Ed Meese and two leading constitutional scholars.

In their amicus brief, they contend that Smith lacks the authority to represent the United States in seeking Supreme Court intervention, known as a petition for certiorari.

The background

This deficiency is attributed to the absence of congressional creation of the office he currently holds, thereby violating the "Appointments Clause" of the Constitution.

The filing asserts that U.S. Attorney General Merrick Garland improperly appointed Smith to a non-existent office, exceeding the authority vested in Garland. Meese, Steven Calabresi (co-chairman of the Federalist Society), and Gary Lawson (a prominent constitutional law professor) argue that only Congress possesses the authority to create federal offices, a step not taken in Smith's case.

While the Constitution establishes the offices of President and Vice President, any additional offices must be "established by Law," a power reserved for Congress.

The amicus brief

The amicus brief highlights that although Congress previously authorized a similar position known as an "independent counsel," that statute expired in 1999.

The attorneys posit that Garland cannot enlist an employee to perform tasks unauthorized by Congress, insisting that only an "officer" can wield such significant authority.

They stress that the Department of Justice, created by Congress, was endowed with specific powers by law, but no office possessing all the powers of a U.S. Attorney, as granted to Smith by Garland, was ever authorized.

The brief also argues that even if one assumes existing statutes allow the appointment of standalone special counsels with U.S. Attorney powers, Smith's appointment was still improper.

Smith's power

The brief contends that Smith holds so much power that he qualifies as a "principal officer" under the Constitution's Appointments Clause. They assert that he should be nominated by the president and confirmed by a majority of the U.S. Senate.

The brief concludes by stating that, being improperly appointed, Smith lacks the authority to represent the United States in the Supreme Court.

It equated his authority to that of individuals like Bryce Harper, Taylor Swift, or Jeff Bezos, emphasizing the lack of legitimacy in his representation.

While the focus of these arguments centers on urging the Supreme Court to reject Smith's petition, the broader implication suggests that lower federal courts should dismiss all of Smith's prosecutions, including pending charges against Trump.

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