Former AG says Jack Smith's appointment was illegal

 December 21, 2023

Former attorney general Ed Meese has filed a Supreme Court brief arguing that Jack Smith has no legal authority to prosecute Donald Trump. 

Meese, who served under President Reagan, argues that attorney general Merrick Garland was not authorized by law to appoint a private citizen, like Smith, with the sweeping prosecutorial power Smith has been given.

As such, Smith's current petition for the Supreme Court to fast-track Trump's January 6th immunity claims should be ignored.

Jack Smith has no authority...

The amicus brief from Meese runs over 30 pages and includes a lot of legal jargon, but it has a couple of key points.

First, all federal offices not listed in the Constitution must be created by Congress - and Congress has not created any position like the one Smith currently holds.

Meese emphasized that Smith is a private citizen, but he has been given the power of a full-fledged U.S. attorney.

The law does permit special counsels in some limited roles as assistants, but not with the sweeping authority Smith has received - which is equal to or even exceeds that of a Senate-confirmed U.S. attorney, Meese said.

A position similar to Smith's, called an "independent counsel," previously existed but the authorizing statute expired in 1999.

The naked emperor

Even if Smith's position were lawful, he was not lawfully appointed.

Meese noted that Smith does not answer to Garland - in fact, Garland specifically said so, to instill confidence that Smith's probe was independent. As such, Smith counts as a "superior officer."

"He is prosecuting a former President, the first time that has happened in our Nation’s history. Smith is purporting to exercise at least as much power as a U.S. Attorney, and arguably more. That is the hallmark of a superior officer, who must be appointed as such."

Smith is thus so powerful that he must be nominated by the president and confirmed by the Senate to lawfully hold his position.

Emperor with no clothes

Meese likened Smith to the proverbial emperor with no clothes.

"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," Meese concluded.

"That fact is sufficient to sink Smith’s petition, and the Court should deny review."

The question is whether the Supreme Court will consider Meese's carefully considered arguments.

Even if Smith does not lose his job, his plan for prosecuting Trump before the election is starting to unravel - with the Supreme Court possibly playing a role. Stay tuned.

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