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A new development could have severe implications for the Biden Administration's legal pursuits against former President Donald Trump. Former Attorney General Ed Meese, Professor Gary Lawson, and Steven Calabresi have submitted a writ of certiorari to the Supreme Court, contending that private citizen Jack Smith was never constitutionally appointed as Special Counsel. If successful, this would render all of Smith's actions legally moot.
The constitutional scholars and former Reagan-Era Attorney General argue that, according to U.S. statutes governing the Department of Justice, only Congress has the authority to establish offices subordinate to the Attorney General. Since Smith was directly hired by current Attorney General Merrick Garland, the proper constitutional process—appointment by the President and confirmation by the full U.S. Senate—did not occur.
In their petition to the Supreme Court, the trio asserts that various legal actions undertaken by Smith under the 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."
Garland, as Attorney General, is statutorily incapable of merely hiring "a mere employee" and granting them the power to perform tasks unauthorized by Congress, as noted by Breitbart News. Smith, although purportedly possessing national jurisdiction, must be a properly appointed and confirmed "officer" under the Appointments Clause of the U.S. Constitution to wield such expansive investigative powers. The Amicus brief argues, "Even if one somehow thinks that existing statutes authorize the appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an 'office.'"
Calabresi, in an explanatory piece for Reason, asserts, "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 brief itself concludes with a striking dismissal of Smith's appointment, stating, "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."
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