Former AG Meese: Jack Smith’s appointment as special counsel unconstitutional

by WorldTribune Staff, December 21, 2023

Lawyers representing former Attorney General Ed Meese and two top constitutional scholars argued in a brief filed with the U.S. Supreme Court that Jack Smith’s appointment as special counsel is unconstitutional and the court must reject Smith’s petition against Donald Trump.

Special counsel Jack Smith

The Wednesday filing states that Attorney General Merrick Garland improperly appointed Smith to an office that does not exist with authority Garland does not possess.

The amicus (or “friend of the court”) brief argues that Smith lacks authority to represent the United States by asking the Supreme Court to weigh in because the office he holds has not been created by Congress and his appointment violates the “Appointments Clause” of the Constitution.

Meese, Steven Calabresi, the co-chairman of the Federalist Society, and Gary Lawson, a prominent constitutional law professor, argue in the brief that only Congress can create federal offices such as Smith currently holds, which Congress has not done.

Calabresi noted: “Unlike a U.S. Attorney, private citizen Jack Smith has not been nominated by the president and confirmed by the Senate for the particular office of special counsel, which he now holds. This is blatantly unconstitutional and renders Jack Smith powerless to seek a writ of certiorari before judgment from the Supreme Court, as he is trying to do at the moment.”

While the Constitution creates the offices of President and Vice President, Congress has the sole authority to create additional offices, because the Constitution says those offices must be “established by Law.” Congress previously passed a law to authorize a similar position called an “independent counsel,” but that statute expired in 1999.

The brief argues: “Even if one somehow thinks that existing statutes authorize appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an ‘office.’ ”

The brief goes on to say that the “improperly appointed” Smith “has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”

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