Former AG and two constitutional scholars file brief with SCOTUS alleging Jack Smith appointment was unconstitutional

WASHINGTON, DC- Newsmax reports that former Attorney General under President Reagan Edwin Meese and two constitutional scholars claim that the appointment of special counsel Jack Smith by Attorney General Merrick Garland was unconstitutional because Congress never created his position. 

In an amicus brief filed last week with the United States Supreme Court, Meese and professors Steven Calabresi and Gary Lawson argue that lower federal courts should dismiss all of Smith’s prosecutions, which include his persecution of former President Donald Trump. 

“That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current attempt to obtain a ruling from this court,” the brief said. 

The motion filed by Smith involves an attempt to have the high court bypass a federal appeals court and hold an expedited appeal as to whether Trump has immunity from prosecution related to the 2020 election. Trump claims he has presidential immunity shielding him from the charges filed by Smith. 

However, on Friday, the Washington Post reported the Supreme Court rejected Smith’s motion and will not fast-track consideration of Trump’s claim he was immune from prosecution, torpedoing Smith’s attempt to speed up the trial of Trump before the November 2024 election. 

Trump pleaded not guilty in Washington, D.C., to four counts: conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding. These charges are all tied to the January 6, 2021, “insurrection” that wasn’t. 

In addition to the charges stemming from the Capitol siege, Trump is also facing a 40-count criminal indictment in Florida regarding his handling of classified documents. The former president claims that as president, he had the right to declassify any documents he wished, which is what was done in the case of the so-called classified documents. 

The brief filed by Meese, Calabresi, and Lawson alleges Smith lacks authority to represent the United States in targeting Trump for prosecution, claiming such actions “can be taken only by persons properly appointed as federal officers to properly created federal offices.” 

“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria,” the brief stated. “And that is a serious problem for the American rule of law–whatever one may think of the defendant or the conduct at issue in the underlying prosecution.” 

In appointing Smith on Nov. 18, 2022, Garland claimed he had statutory authority to do so. However, the brief argues that “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.” 

Before the high court’s ruling Friday, Trump’s attorneys filed a motion urging them to “decline that invitation” from Smith and allow the U.S. Circuit Court of Appeals to hear the subsequent appeal, alleging that Smith is pushing the court to “decide the issues with reckless abandon.” 

The amicus brief says the appointment of Smith violates the “Appointments Clause” of the Constitution, which the brief noted “requires that all federal offices ‘not otherwise provided for’ in the Constitution must be ‘established by Law.’” 

“There is no statute establishing the Office of Special Counsel in DOJ,” the brief claims. “The statutory provisions relied upon by DOJ and lower courts for the appointment of special counsels over the past half-century do not authorize the creation and appointment of special counsels at the level of United States Attorneys.” 

The brief continued that neither the federal statutes nor the Constitution allow for the attorney general “to appoint a private citizen, who has never been confirmed by the Senate, as a substitute U.S. attorney under the title ‘special counsel.’” 

“This is what happened on November 18, 2022,” the brief continued. 

The brief said Smith is the equivalent of “the naked emperor.” 

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief said. “Improperly appointed, he has no more authority to represent the United States in this court than Bryce Harper, Taylor Swift, or Jeff Bezos,” the ABA Journal reported. 

Writing in the Volokh Conspiracy, Calabresi summarized the arguments in a post: 

The briefs argue that Attorney General Merrick Garland “exceeded his statutory and constitutional authority” when he appointed Smith, saying that because that appointment was unconstitutional, “every action that he has taken since his appointment is now null and void.” 

It should be noted that Smith was not nominated to be special counsel by Joe Biden, nor was he confirmed by the United States Senate. Despite that, Calabresi wrote that he has nationwide jurisdiction, which makes him more powerful than any of the 93 Senate-confirmed U.S. attorneys nationwide. Calabresi further wrote that federal law allows the attorney general to appoint attorneys to assist U.S. attorneys, not replace them. 

The brief argued that no statute allowed Garland to appoint an inferior officer special counsel holding Smith's powers. Moreover, any such inferior officer must be controlled by a superior officer; however, Garland doesn’t have that power under DOJ regulations. 

Calabresi noted there is a proper (and legal) way to appoint a special counsel such as Smith–Garland should “ask one of the very best Senate-confirmed U.S. attorneys now in office to prosecute the cases arising out of the events of Jan. 6, 2021, or the misuse of classified documents case, to be special counsel” with nationwide authority. 

In that case, Garland could appoint Smith as a special assistant to the special counsel, which would, therefore, require the Trump cases to be “restarted from scratch.” 

“We do not want future U.S. attorney generals, such as the ones Donald Trump might appoint, if he is reelected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way of Attorney General Merrick Garland has empowered private citizen, Jack Smith,” Calabresi wrote. “Think of what that would have led to during the McCarthy era.”