In a significant development, a federal court has raised questions about the constitutionality of Special Counsel Jack Smith’s appointment in the case against former President Donald Trump. The court has asked lawyers on both sides to address the issue of Smith’s appointment during oral arguments. This move comes after Ed Meese, former attorney general under President Reagan, filed a friend-of-the-court brief arguing that Smith’s appointment is a violation of the Appointments Clause of the Constitution.
Meese, along with scholars Steven G. Calabresi and Gary S. Lawson, argued in the brief that Smith, a private citizen, does not have the authority to conduct the underlying prosecution against Trump. They compared Smith to a “naked emperor” and stated that his appointment is illegal and lacks the authority to represent the United States in court.
The brief was filed in Smith’s case against the 45th president on criminal charges related to Trump’s actions during the Capitol riot on January 6, 2021. The oral arguments for the case are scheduled for January 9. Will Scharf, attorney for the former president, expressed that the court’s order indicates that they are taking the amicus briefs seriously.
Meese and his colleagues further argued that Smith’s appointment as Special Counsel does not meet the criteria for conducting the underlying prosecution. They emphasized that such actions can only be taken by individuals properly appointed as federal officers to properly created federal offices. They also highlighted the absence of statutory authority for the appointment of a private citizen as Special Counsel.
The former attorney general pointed out that even if one overlooks the absence of statutory authority, there is no statute specifically authorizing the Attorney General, rather than the President with Senate approval, to appoint a Special Counsel. Meese emphasized that according to the Appointments Clause, only inferior officers can be appointed by department heads if directed by Congress through a specific statute.
Meese urged the court to consider the Appointments Clause challenge and invalidate Smith’s appointment. He argued that the Special Counsel, if considered a valid officer, is a superior officer and can only be appointed through presidential appointment and senatorial confirmation.
This development raises significant questions about the legality and authority of Smith’s appointment as Special Counsel. The court’s decision on this matter could have implications for the ongoing investigation into Trump’s actions following the 2020 presidential election. It remains to be seen how the court will address these constitutional concerns raised by Meese and his associates.
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