Special counsel in Trump case unconstitutional, former Reagan AG says

Former Attorney General Ed Meese has presented arguments to the Supreme Court that they should reject Special Counsel Jack Smith’s requests because he was unconstitutionally appointed in the first place. 

Meese, along with law professors Steven G. Calabresi and Gary S. Lawson, filed a friend-of-the-court brief Wednesday to present the case that Attorney General Merrick Garland’s appointment of Smith — a private citizen — is in violation of the Appointments Clause of the Constitution. 

"Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," the brief states. 

"Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos," they argued. 

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The brief was filed in response to Smith’s request to the court to expedite former President Donald Trump’s case arguing presidential immunity for his actions on Jan. 6, 2021, which are connected to criminal charges brought by Smith. 

Meese argues that the "illegality" of Smith’s appointment is "sufficient to sink Smith’s petition, and the Court should deny review." 

Meese and company noted in the brief that Smith was appointed "to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."

While Garland cited as statutory authority for this appointment, Meese argues that "none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel."

"Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel," the former AG wrote. 

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"Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute… and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel," he added. 

Meese, who served as attorney general under former President Reagan, said "the Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say."

Earlier this month, Smith petitioned the high court to decide Trump’s immunity claims in his case facing charges related to his efforts to overturn the 2020 election results. 

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Smith asked for expedited consideration of the case to essentially have the high court take over jurisdiction before the lower federal courts have fully decided the matter.

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Smith wants the court to expedite the claims in hopes to keep Trump’s Washington, D.C., trial — scheduled to begin March 4 — on track.