Late on Friday, the U.S. Supreme Court rejected a move by Special Counsel Jack Smith to expedite the examination of the issue of whether or not the former president Trump is exempt from prosecution in the federal case pertaining to election meddling in 2020.
The top court’s ruling might cause his federal 2020 election trial to continue past its currently scheduled start date of March 4.
Smith asked the Supreme Court earlier this month to rule quickly on whether Republican front-runner Donald Trump is completely exempt from prosecution for offences committed while in office.
This claim has been essential to Trump’s legal team’s defence plan. It requested a stay of the proceedings after claims claiming immunity from the indictment were rejected by U.S. District Judge Tanya Chutkan. The case’s proceedings have ceased while the appeal is still underway.
Attorneys representing former Attorney General Ed Meese and two of the nation’s leading constitutional experts filed a brief on Wednesday contending that Smith’s petition against Trump should be denied by the U.S. Supreme Court on the grounds that Trump’s appointment as special counsel is unconstitutional.
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, famous constitutional law scholar Gary Lawson, and co-chairman of the Federalist Society Steven Calabresi argue that Congress alone has the right to create federal positions such as the one Smith now holds, and Congress has not exercised 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 goes on to say, “Smith was not properly appointed to such a ‘office,’ even if one somehow believes that existing statutes authorise the appointment of stand-alone special counsels with the full power of a U.S. Attorney.” They argue that even in the event that Congress approved the appointment of special counsels, the Senate would need to confirm the nominee and the president would need to nominate them.
Furthermore, the brief argued that because Smith is a “principal officer” under the Constitution’s Appointments Clause, his authority is equivalent to that of a U.S. attorney. This means that after the president nominates someone, approval by a majority of the U.S. Senate is required.
He is not more qualified to represent the United States in this Court than Bryce Harper, Taylor Swift, or any other improperly chosen individual.