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Attorneys for former Attorney General Ed Meese and two of the top constitutional scholars in the country filed a brief arguing that the U.S. Supreme Court must reject Jack Smith’s petition against former President Donald Trump because his appointment as special counsel is unconstitutional.
Their amicus brief contends that Smith’s representation of the United States in his petition for certiorari to the Supreme Court is invalid due to his lack of authority. This is because Congress has not established the position he holds, and his appointment is in violation of the Constitution’s “Appointments Clause.”
The filing alleges that U.S. Attorney General Merrick Garland made an improper appointment of Smith to a non-existent office, for which Garland lacks the necessary authority, as Newsweek noted.
Meese, Steven Calabresi, the co-chairman of the Federalist Society, and Gary Lawson, a renowned constitutional law professor, contend that Congress alone has the authority to create federal positions like the one Smith is currently holding, and Congress has not used this power.
Although the Constitution establishes the positions of President and Vice President, Congress possesses exclusive authority to establish additional positions, as the Constitution stipulates that such positions must be “established by law.”
Congress had previously enacted legislation to grant authorization for a comparable role known as “independent counsel.” However, this statute lapsed in 1999.
The lawyers claim that Garland is unable to assign a subordinate to perform tasks that Congress has not approved. Only an individual with the title of “officer” possesses the requisite level of authority.
While establishing the Department of Justice, Congress granted it specific powers through legislation. However, it did not authorize any office with the same level of authority as a U.S. Attorney, which Garland has bestowed upon Smith.
The amicus brief further argues, “Even if one somehow thinks that existing statutes authorize the appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an ‘office.’” They contend that even if Congress authorized special counsels, anyone holding such authority would require presidential nomination and Senate confirmation.
Additionally, the brief contended that Smith’s authority is comparable to that of a U.S. attorney, as he is a “principal officer” according to the Appointments Clause of the Constitution. This means that confirmation by a majority of the U.S. Senate is mandatory following his nomination by the president.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” they write.
While the primary focus of these briefs is to argue against the Supreme Court granting Smith’s petition to transfer the case to the high court, their reasoning would require lower federal courts to dismiss Smith’s entire portfolio of prosecutions, including all pending charges against Trump.
During the presidency of Ronald Reagan, Meese served as Attorney General. Congress’s approval of independent counsel played a significant role during this time.
Trump made headlines late last week when he pounced on a comment Smith made in a recent court filing.
In a court filing on Friday, Trump claimed that Smith had admitted to taking direction from President Joe Biden, according to a post on his Truth Social platform on Saturday.
“While Crooked Joe Biden and his Cronies have claimed from the outset they have nothing to do with Jack Smith’s Election Interference case against me, Smith himself admitted in a Court Filing yesterday that he ‘remains subject to Attorney General direction and supervision,’ and that includes Biden,” Trump wrote in a post.
“That’s right, Jack Smith just admitted what the American People already know, namely, that his case is being directed and supervised by the Biden Administration. So, although he denies it, [Attorney General Merrick] Garland is carrying out the orders from his boss to prosecute me, and to interfere in the 2024 election,” Trump added.
Trump appears to be referring to a Thursday filing in a separate lawsuit Smith filed accusing him of illegally hoarding classified documents at his Mar-a-Lago estate in Florida after leaving the White House and refusing requests from the government to return them.
He has also denied wrongdoing in that case.
That filing states that Smith was retained from outside of the Department of Justice “to ‘ensure a full and thorough investigation.'”
“While he remains subject to attorney general direction and supervision, he also retains ‘a substantial degree of independent decisionmaking’ […] a is not part of the regular department chain of command or ‘subject to the day-to-day supervision of any official of the department.”
Trump is battling four different investigations, two of which Smith started, as he makes his bid to win back the White House in November.
