Former AG Ed Meese says Jack Smith special counsel appointment unconstitutional

 December 22, 2023

Though special counsel Jack Smith has pulled no punches in his legal pursuit of former President Donald Trump, former Attorney General Ed Meese has just presented arguments to the U.S. Supreme Court suggesting that his appointment to the position was unconstitutional from the start, as Fox News explains.

The contentions came in an amicus brief filed on Wednesday together with law professors Gary Lawson and Steven Calabresi, and in the submission, the group states that the decision of Attorney General Merrick Garland to tap Smith for the role ran afoul of the Constitution's Appointments Clause.

As such, they assert, Smith's arguments before the high court with regard to his cases against Trump need not be entertained.

The brief was submitted in the wake of Smith's request that the high court expeditiously rule on Trump's claim of immunity in his federal election interference case, which currently is slated for trial beginning on March 4, 2024.

In the submission, the authors argue that as a private citizen, Smith was ineligible for appointment to the role given to him by Garland, as Fox News notes.

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief states.

Their filing continues of Smith and his status, “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”

Meese acknowledged that Garland had attempted to cite statutory authority to justify his appointment of Smith, he argued that “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.”

The former AG went on, “Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel.”

Underscoring the constitutional underpinnings of his argument, Meese continued, “Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute...and so directs specifically enough to overcome a clear-statement presumption in favor of presidential and senatorial confirmation.”

“No such statute exists for the Special Counsel,” the brief emphatically declares.

Meese concluded that “the Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say.”

On Friday afternoon, the high court declined to expedite consideration of Trump's immunity claim, thereby rejecting Smith's entreaty for rapid review, as the New York Post reported.

Whether the standing arguments advanced by Meese, Calabresi, and Lawson will gain any traction as the legal battles between Smith and Trump continue, however, only time will tell.