A new development could prove devastating to the Biden Administration’s attempts to engage former President Donald Trump in lawfare. Former Attorney General Ed Meese, Professor Gary Lawson, and Steven Calabresi have filed a writ of certiorari with the Supreme Court to declare that private citizen Jack Smith, was never constitutionally appointed as Special Counsel. This would render all actions he has taken legally moot.
The two widely respected constitutional scholars and former Reagan-Era AG have presented a compelling legal argument that under U.S. statutes governing to Dept. of Justice, only Congress can create offices subordinate to the Attorney General. As Smith was hired directly by current AG Merrick Garland, the correct constitutional process of appointment by the President, and confirmation by the full U.S. Senate never took place.
The trio in the text of their petition to SCOTUS argue that the various legal actions undertaken by Smith under color of law “can be taken only by persons properly appointed as federal officers to properly created federal offices. 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.”
As observed by Breitbart News, Garland as Attorney General is statutorily incapable of simply hiring “a mere employee,” and conferring upon them the power to perform tasks that have not been authorized by Congress. Smith has been effectively acting with the same power as one of the 23 presidential appointed and Senate-confirmed U.S. Attorneys, save with one major difference: his jurisdiction is purportedly national.
However, only a properly appointed and confirmed “officer” of the United States may wield such authority. The Amicus brief argues,
“Even if one somehow thinks that existing statutes authorize appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an ‘office.’
Furthermore, in order to legally hold such expansive powers of investigation, subpoena and indictment, Smith must be a “principal officer” under the Appointments Clause of the U.S. Constitution, cementing the requirement that he be properly nominated by the President, and thoroughly subject to the vetting and confirmation hearing process of the Senate. A process he likely would have never overcome.
In an explanatory piece written for Reason Calabresi explains,
“The fact of the matter is that everything Jack Smith has done as Special Counsel, since his appointment on November 18, 2022 has been unconstitutional and is null and void. Anyone now in jail, or subject to a plea bargain, with Jack Smith can ask to be released because Jack Smith is, in truth, a private citizen. The judge in the Florida District Court classified documents case is under the jurisdiction of the 11th Circuit and is not bound by D.C. Circuit precedent. Any litigant in a case before her can argue that Jack Smith is not a lawfully appointed officer of the United States.”
But perhaps the most damning and dismissive statement of Smith’s unconstitutional appointment comes from the text of the brief itself stating that “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.”