Supreme Court Filing: Jack Smith’s Appointment Is Unconstitutional

Jack Smith, Trump Both Urge SCOTUS to Consider Case as First in Nation's History

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An amicus brief filed with the high court argues that Jack Smith’s appointment should have never happened.

Former Attorney General Edwin Meese and two scholars submitted an amicus brief with the Supreme Court that the Department of Justice’s (DOJ) appointment of special counsel Jack Smith was unconstitutional and that every action against former President Donald Trump should be declared null and void.

“This Court should reject Mr. Smith’s request for certiorari before judgment for the simple reason that he lacks authority to ask for it,” according to Wednesday’s filing from Mr. Meese and two constitutional scholars. “Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices.”

The filing Wednesday argued that Attorney General Merrick Garland also “exceeded his statutory and constitutional authority” when Mr. Smith was appointed last year to oversee two federal cases targeting President Trump. The attorney general has cited a statute for the appointment, but the statute is not even “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel,” the filing said.

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” it said. “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos. That fact is sufficient to sink Smith’s petition, and the Court should deny review.”

The brief argued that both statutes and the Constitution do not allow the attorney general to appoint a private citizen, who has never been confirmed by the Senate, as a substitute U.S. attorney under the title ‘special counsel.’” The brief added: “That is what happened on November 18, 2022.”

Earlier this month, Mr. Smith’s team urged the Supreme Court to quickly review an appeal on whether President Trump has immunity from prosecution relating to his federal election case. The former president’s lawyers have argued in appeals courts that he had absolute immunity because he was the president.

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In a filing submitted on Wednesday, President Trump’s attorneys urged the Supreme Court to reject Mr. Smith’s petition and allow the U.S. appeals court system to hear his next appeal, while they have claimed that the special counsel wants a conviction before the 2024 election.

Law professors Steven Calabresi of Northwestern University and Gary Lawson of Boston University joined Mr. Meese, the attorney general under former President Ronald Reagan, in submitting the petition to the high court.

“I think the Supreme Court, when it ultimately addresses these Appointment Clause issues will reach the same conclusion that former Attorney General Ed Meese, Professor Gary Lawson, and I have in the amicus brief, which we filed today in the Supreme Court. Jack Smith’s appointment to be Special Counsel was unconstitutional, and every action that he has taken since his appointment is now null and void,” Mr. Calabresi wrote in an article published for Reason on Dec. 20.

He argued that the proper way that Mr. Garland should have appointed a special counsel “is to ask one of the very best Senate-confirmed U.S. Attorneys now in office to prosecute the cases arising out of the events of January 6, 2021, or the misuse of classified documents case, to be Special Counsel allowing that U.S. Attorney to prosecute cases nationwide and not only in one of the 93 Districts each of which has its own Senate confirmed U.S. Attorney.”

When he was appointed to be the special counsel, Mr. Smith was then a war crimes investigator who was employed by the government of Kosovo. Previously, he served as a U.S. attorney for the middle district of Tennessee.

“The organic statutes governing the Justice Department allow the Attorney General great discretion in moving around on the DOJ chess board currently confirmed appointees. They do not allow the Attorney the power to create an inferior officer Queen just because someone was at some point in the past a DOJ superior or inferior officer,” he wrote.

 Former Attorney General Edwin Meese applauds as President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to Meese, in the Oval Office of the White House, in Washington on Oct. 8, 2019. (AP Photo/Alex Brandon)
Former Attorney General Edwin Meese applauds as President Donald Trump speaks during a ceremony to present the Presidential Medal of Freedom to Meese, in the Oval Office of the White House, in Washington on Oct. 8, 2019. (AP Photo/Alex Brandon)

The DOJ has not filed a response yet to their claims with the Supreme Court.

“We do not want future U.S. Attorney Generals … to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Mr. Calabresi argued. “Think of what that would have led to during the McCarthy era or in the Grant, Harding, Truman, or Nixon Administrations in all of which an Attorney General was corrupt.”

After Mr. Smith’s filing, the justices indicated they would decide quickly whether to hear the case. The court’s brief order did not signal what it ultimately would do.

The special counsel’s team stressed that if the court did not expedite the matter, there would not be an opportunity to consider and resolve the question in the current term. “The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”

The Associated Press contributed to this report.

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