Amicus brief in Trump election case argues Special Counsel Smith's appointment was unconstitutional and must be vacated

 January 4, 2024

Special Counsel Jack Smith is prosecuting former President Donald Trump on two separate federal matters -- retention of classified documents and interference in the 2020 election -- but might actually not have any proper authority to do so.

Such is the claim of a former U.S. attorney general and two constitutional law professors, whose arguments could conceivably result in Smith being stripped of power and his prosecutorial efforts against Trump and others entirely vacated, Breitbart reported.

That issue could come to a head next week during a scheduled hearing before the D.C. Circuit Court of Appeals in the matter of Smith's election-related prosecution of Trump, which is currently on hold pending resolution of Trump's claim of continued presidential immunity from criminal prosecution.

Circuit Court tells attorneys to prepare to answer questions raised by amicus briefs

On Tuesday, the D.C. Circuit Court issued an order instructing "that counsel be prepared to address at oral argument on January 9, 2024, any inquiries by the Court regarding discrete issues raised in the briefs filed by amici curiae."

In other words, attorneys for both the prosecution and the defense need to be ready to discuss any and all matters raised in briefs filed with the court by non-parties with an interest in the case.

That includes an amicus brief filed on the docket that same day with the appeals court by former U.S. Attorney General Edwin Meese III, who served under President Ronald Reagan, along with constitutional law professors Steven Calabresi and Gary Lawson.

Breitbart reported that those three esteemed legal experts have argued, in essence, that current Attorney General Merrick Garland "improperly appointed Smith to an office that does not exist with authority Garland does not possess."

No statutory authority for special counsel's office of Garland's appointment of Smith

In the 44-page amicus brief, which took no sides in the underlying dispute between Special Counsel Smith and former President Trump, Meese and the two professors wrote, "Jack Smith does not 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."

"Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria," they continued. "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."

The brief asserted that AG Garland "exceeded his statutory and constitutional authority" in November 2022 with the appointment of Smith as special counsel -- a position that was never "established by Law" by Congress, as is required by the U.S. Constitution for all executive officer positions beneath the presidency and vice presidency.

Even setting aside the lack of statutory authorization of the Office of Special Counsel, Garland still exceeded his authority in unilaterally appointing an executive officer that, again per the Constitution, must instead be appointed by the president and confirmed by the Senate.

Garland should have appointed an already-confirmed U.S. attorney to be special counsel

That said, the brief outlined how those constitutional defects could be worked around in terms of an appropriate and lawful special counsel, namely by appointing to that dubious position an already serving U.S. Attorney -- perhaps with "private citizen" Smith named as a "special assistant" -- who had previously been appointed by the president and confirmed by the Senate.

"What federal statutes and the Constitution do not allow, however, is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title 'Special Counsel,'" the brief argued. "That is what happened on November 18, 2022. That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current prosecution of Defendant."

To be sure, it seems rather unlikely that the left-leaning D.C. Circuit Court will suddenly strip Smith of his special counsel status and vacate all of his prosecutorial actions against Trump and others, but a similar brief was filed previously by Meese and the professors with the U.S. Supreme Court, which will likely be forced to address the underlying efforts against Trump soon and may be more amenable to considering the alleged illegality of Smith's appointment and subsequent acts under the auspices of his questionable authority.

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