The potential repercussions of a recent revelation on the Biden Administration’s endeavors to ensnare former President Donald Trump in legal disputes are substantial. In a writ of certiorari filed with the Supreme Court, former Attorney General Ed Meese, Professor Gary Lawson, and Steven Calabresi petition for a declaration that the appointment of private citizen Jack Smith as Special Counsel was improper. Thus, all of his previous actions would be rendered legally inconsequential.
As posited by a distinguished constitutional scholar and former Attorney General during the Reagan administration, a compelling legal contention exists that the establishment of subordinate offices to the Attorney General is exclusively within the jurisdiction of Congress, as mandated by the U.S. legislation governing the Department of Justice. By bypassing the appropriate constitutional procedure of being appointed by the President and confirmed by the full U.S. Senate, Smith was appointed by current Attorney General Merrick Garland.
The trio in the text of their petition to SCOTUS argue that the various legal actions undertaken by Smith under color of law “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. 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.”
As per Breitbart News, Garland lacks the legal authority to appoint a regular employee and assign them responsibilities that have not been sanctioned by Congress in his capacity as Attorney General. Smith, with one notable differentiation, has been operationally exercising the same jurisdiction as one of the 23 U.S. Attorneys appointed by the President and confirmed by the Senate. Smith’s jurisdiction is purportedly to be nationwide.
However, such authority can only be exercised by an officially designated and verified “officer” of the United States. The Amicus brief puts forth a compelling case: “Smith was not duly appointed to a ‘office’ even if one were to believe that current statutes permit the appointment of independent special counsels with the authority of a U.S. attorney.”
Furthermore, for Smith to be endowed with such broad investigative, subpoena, and indictment powers, he must satisfy the requirements for “principal officer” status as stipulated in the Appointments Clause of the United States Constitution. This reinforces the imperative that he be formally nominated by the President and subjected to a comprehensive confirmation hearing and scrutiny process administered by the Senate. A challenge that he most likely never could have overcome.
In an explanatory piece written for Reason Calabresi explains,
“The fact of the matter is that everything Jack Smith has done as Special Counsel, since his appointment on November 18, 2022 has been unconstitutional and is null and void. Anyone now in jail, or subject to a plea bargain, with Jack Smith can ask to be released because Jack Smith is, in truth, a private citizen. The judge in the Florida District Court classified documents case is under the jurisdiction of the 11th Circuit and is not bound by D.C. Circuit precedent. Any litigant in a case before her can argue that Jack Smith is not a lawfully appointed officer of the United States.”
Nevertheless, the brief expresses a vehement and disdainful remark regarding the illegality of Smith’s appointment, characterizing him as a modern-day embodiment of an illegitimate leader lacking federal authority. Comparable in authority to Bryce Harper, Taylor Swift, or Jeff Bezos, he is not fit to represent the United States in this Court on account of his unlawful appointment.