Attorney General Ken Paxton Files Amicus Brief Supporting President Trump, Arguing Special Prosecutor Jack Smith Was Illegally Appointed by Biden-Harris DOJ

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AUSTIN – Attorney General Ken Paxton filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit supporting President Donald Trump’s claims that special prosecutor Jack Smith was illegally appointed by the U.S. Department of Justice (“DOJ”).

The brief argues that the Biden-Harris Administration’s appointment of the special prosecutor in this case directly implicates Texas’s fundamental interest in preventing unlawful federal action. DOJ claims that the U.S. Attorney General—acting without any statutory guidance from Congress—may empower a private individual to spend tens of millions of dollars to enforce federal criminal laws.

Further, Texas’s brief argues that the appointment of a “special prosecutor” triggers the principle of constitutional avoidance. The Constitution requires Congress to provide meaningful guidance when empowering federal agencies to choose between two available enforcement paths yet, here, the statutes DOJ cites provide no guidance at all.

“The Biden-Harris Administration’s appointment of Jack Smith was blatantly unconstitutional,” said Attorney General Paxton. “DOJ, without any authority, spent more than $30 million to hire a private individual to harass the former President by weaponizing partisan lawfare against him. This erodes the rule of law that distinguishes the United States from third-world, totalitarian regimes.”

The brief explains: “By any measure, it is extraordinary to suppose that Congress empowered the Attorney General to appoint a private attorney to lead (rather than simply assist) a significant multi-district investigation and prosecution on behalf of the United States. It is even more extraordinary to suppose that Congress would allow the Attorney General to do this for one of the most high-profile and expensive prosecutions imaginable: The unprecedented prosecution of a former President of the United States. Because the claimed power is extraordinary, Congress must speak clearly before courts can conclude that the Attorney General is authorized to wield it.”

To read the brief, click here.