In a brief submitted to the U.S. Supreme Court, attorneys for former Attorney General Ed Meese and two of the nation’s leading constitutional academics contended that Jack Smith’s petition against former President Donald Trump should be denied due to the unconstitutionality of his appointment as special counsel.
In their amicus brief, they argue that Smith’s lack of power renders his representation of the United States in its certiorari petition to the Supreme Court illegitimate. This is due to the fact that his appointment violates the “Appointments Clause” of the Constitution because Congress has not established the office he holds.
According to the lawsuit, Smith was improperly appointed by U.S. Attorney General Merrick Garland to a post that does not exist and for which Garland is not qualified, as Newsweek pointed out. Meese, Federalist Society co-chair Steven Calabresi, and eminent constitutional law expert Gary Lawson argue that Congress alone possesses the right to establish federal posts such as the one Smith already occupies, and Congress has not used this authority.
While the President and Vice President are designated by the Constitution, Congress is the only body authorised to create other offices because the Constitution requires them to 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.