Experts in law want to discredit the Biden Administration’s legal defense of Trump. A petition to the Supreme Court is filed by a former attorney general, a professor, and a lawyer, challenging the validity of the appointment of Special Counsel and perhaps nullifying all earlier acts.
Prominent constitutional experts and a former AG from the Reagan administration have lately presented a strong legal case. They contend that only Congress has the power to create positions reporting to the Attorney General in accordance with US legislation regulating the Department of Justice. This argument makes it evident that the nomination of Smith—who was appointed immediately by current Attorney General Merrick Garland—did not adhere to the proper constitutional procedure. Smith never received the required confirmation by the whole US Senate and appointment by the President.
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In the language of their Supreme Court appeal, the three contend that Smith’s numerous legal activities were conducted in violation of the 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.”
Breitbart News noted that Garland, in his capacity as Attorney General, is legally prohibited from appointing “a mere employee” and giving them the authority to carry out duties that Congress has not approved. With the exception of one significant distinction—his ostensibly nationwide jurisdiction—Smith has been functioning with essentially the same authority as any of the 23 U.S. Attorneys chosen by the president and approved by the Senate.
It is up to a fully confirmed and approved “officer” of the United States to unlock the actual authority. This Amicus brief makes a compelling claim.
“Even if one somehow thinks that existing statutes authorize appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an ‘office.’
Smith must fulfill the requirements of a “principal officer” as stated in the Appointments Clause of the U.S. Constitution in order to exercise such broad investigative powers, which include the ability to issue subpoenas and indictments. This means that you must be officially nominated by the President and go through a rigorous Senate confirmation and vetting procedure. It seemed quite doubtful, nevertheless, that Smith could have handled this difficult process.
In a clarification article for Reason, Calabresi states,
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“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.”
Nonetheless, the brief’s language itself makes what is arguably the most derogatory and scathing claim about Smith’s unlawful appointment: “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.”
