In a recent development in the ongoing legal battle involving former President Donald Trump, Republican legal experts have argued that Special Counsel Jack Smith’s appointment is unconstitutional. Former Attorney General Ed Meese, along with law professors Steven G. Calabresi and Gary S. Lawson, filed a friend-of-the-court brief presenting their case that Smith’s appointment violates the Appointments Clause of the Constitution.
The argument against Smith’s appointment stems from the belief that he was unconstitutionally appointed as a private citizen by Attorney General Merrick Garland. Meese and his colleagues assert that Smith, lacking the authority of the federal government, has no legitimate representation of the United States in this case. They compare Smith’s appointment to that of a “naked emperor,” stating that he has no more authority than public figures such as Bryce Harper, Taylor Swift, or Jeff Bezos.
The brief was filed in response to Smith’s request to expedite Trump’s case, which involves claims of presidential immunity for his actions on January 6, 2021. Smith’s charges against Trump are connected to the investigation into efforts to interfere with the lawful transfer of power following the 2020 presidential election.
Meese argues that the “illegality” of Smith’s appointment alone should be sufficient to reject Smith’s petition and deny review by the Supreme Court. He points out that none of the cited statutes or constitutional provisions authorize the appointment of a private citizen as a Special Counsel with extraordinary criminal law enforcement power. Additionally, Meese emphasizes that the Attorney General, rather than the President with the advice and consent of the Senate, lacks the specific authority to appoint a Special Counsel.
Under the Appointments Clause, Meese states that inferior officers can only be appointed by department heads if directed by Congress through specific statutes. He argues that no such statute exists for the Special Counsel position. Meese maintains that the Special Counsel, if considered a valid officer, is a superior officer and can only be appointed through presidential appointment and senatorial confirmation.
Smith had petitioned the Supreme Court to decide on Trump’s immunity claims in his case. He requested expedited consideration, aiming to have the high court take over jurisdiction before the lower federal courts fully decide the matter. Smith hopes that expediting the claims will allow Trump’s trial scheduled for March 4 in Washington, D.C., to proceed as planned.
This legal battle highlights the ongoing controversy surrounding Trump and his actions following the 2020 election. The arguments presented by Meese and his colleagues raise significant constitutional concerns regarding the appointment of Special Counsel Jack Smith and its implications for the case against Trump. The Supreme Court’s decision on whether to review the case and address the issue of presidential immunity will have far-reaching consequences for the future of American politics and the interpretation of the Appointments Clause.
