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Attorneys representing former Attorney General Ed Meese and two prominent constitutional scholars have submitted a brief asserting that the U.S. Supreme Court should dismiss Jack Smith’s petition against former President Donald Trump.
They argue that Smith’s appointment as special counsel is unconstitutional. According to their amicus brief, Smith’s representation of the United States in his request for review by the Supreme Court is deemed invalid due to his lack of proper authority.
This stems from the fact that Congress has not established his current role, thereby violating the “Appointments Clause” of the Constitution.
The document further claims that U.S. Attorney General Merrick Garland’s appointment of Smith to a fictitious position was unauthorized, as Garland does not possess the requisite power for such an action, as reported by Newsweek.
Meese, Steven Calabresi, co-chairman of the Federalist Society, and Gary Lawson, a distinguished professor of constitutional law, argue that only Congress has the power to create federal positions like the one currently held by Smith, and that Congress has not exercised this authority.
While the Constitution defines the roles of President and Vice President, it is Congress that holds the exclusive power to create new positions as mandated by the Constitution’s requirement that such positions be “established by law.”
Congress had once passed a law to allow for an equivalent position called “independent counsel,” but this law expired in 1999.
The attorneys argue that Garland does not have the authority to delegate tasks to a subordinate without Congress’s approval. Only someone holding the title of “officer” has the necessary level of power.
When creating the Department of Justice, Congress gave it specific powers through laws. However, it did not establish any position with authority equal to that of a U.S. Attorney, which Garland has given to Smith.
The amicus brief further 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.’” They contend that even if Congress authorized special counsels, anyone holding such authority would require presidential nomination and Senate confirmation.
Furthermore, the argument put forth in the brief asserts that Smith holds a level of authority…
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