Jack Smith filed a petition against former President Donald Trump on Wednesday, but his appointment as special counsel is unconstitutional, according to attorneys for former Attorney General Ed Meese and two of the nation’s leading constitutional scholars.
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 filing, Smith was wrongfully appointed by U.S. Attorney General Merrick Garland to a post that doesn’t exist and for which Garland is ineligible, Breitbart said.
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.”
Legislation has already been passed by Congress to authorise a similar position known as “independent counsel.” Nevertheless, in 1999, this statute expired.
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.
During the presidency of Ronald Reagan, Meese served as Attorney General. Congress’s approval of independent counsel played a significant role during this time.
Alina Habba, an attorney representing former President Donald Trump’s Save America PAC, is slamming Special Counsel Jack Smith for moving quickly to have the U.S. Supreme Court consider the federal criminal case involving the 2020 election and Trump’s immunity defense.
The indictment accuses Trump of participating in criminal conspiracies to alter the outcome of the 2020 presidential election. Trump has sought to dismiss the charges by claiming that he has presidential immunity.