Three respected legal scholars and political figures, former Attorney General Ed Meese, Professor Gary Lason, and Steven Calabresi, have just moved the ball forward on attempting to stop the lawfare campaign against former President Donald Trump. They did so by filing a writ of certiorari with the Supreme Court of the United States to declare that Jack Smith was never constitutionally appointed as Special Counsel and thus that he should be stripped of his powers and his actions so far be rendered moot.
In the writ of cert, the three constitutional scholars argue that the correct constitutional process for a Special Counsel should be, since only Congress can create offices subordinate to the Attorney General’s role, for the President to appoint a Special Counsel who is then only vested with his or her powers after the Senate confirms the Special Counsel in the role.
Making that argument in their petition, the three say “This Court should reject Mr. Smith’s request for certiorari before judgment for the simple reason that he lacks authority to ask for it. 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.”
Continuing, they argue that Smith is not eligible for the office or for taking the action he so far has because of the lack of a Senate confirmation, saying, “Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
They next claim that Smith’s actions have exceeded his constitutional authority from the start, saying, “The illegality addressed in this brief started on November 18, 2022, when Attorney General Merrick Garland exceeded his statutory and constitutional authority by purporting to appoint Smith to serve as Special Counsel for the Department of Justice (DOJ). Smith was appointed ‘to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.‘”
Then, after noting what statutory authority was used to justify Smith’s acting in the role, they write, “none of those statutes, nor any other statutory or constitutional provisions, 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.”
And, explaining how they view Smtih’s actions as entirely unauthorized by the Constitution because he was not confirmed by the Senate, they write, “Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
It remains to be seen how the Supreme Court will handle the matter and if it credits their argument as having any legal validity, or if, though AG Garland cannot hire a “mere employee” to wield power supposed to only be wielded by a properly-confirmed “officer” of the United States, the Supreme Court will let Smith continue in his role.
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