Former Attorney General Meese: The Appointment of Special Counsel Smith is ‘Unconstitutional’

Former Attorney General Edwin Meese and two constitutional scholars claim the appointment of Justice Department special counsel Jack Smith was unconstitutional because he is holding a position that was never created by Congress.

In an amicus brief filed Wednesday with the Supreme Court, Meese and professors Steven Calabresi and Gary Lawson state that lower federal courts should dismiss all of Smith’s prosecutions, including all of his pending charges against former President Donald Trump.

“That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current attempt to obtain a ruling from this Court,” the brief said.

Smith is urging the U.S. Supreme Court to bypass a federal appeals court and quickly hear an appeal as to whether former President Donald Trump has immunity from prosecution regarding the 2020 election. Trump has pleaded not guilty in Washington, D.C., to four counts: conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding. He claims that because he was president, he is immune from prosecution.

The former president also faces a 40-count criminal indictment by Smith in Florida regarding his handling of classified documents.

The brief claims Smith lacks authority to represent the U.S. in prosecuting Trump because such actions “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,” the brief stated. “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.”

Attorney General Merrick Garland cited statutory authority to appoint Smith on Nov. 18, 2022, as special counsel. But the brief stated, “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.”

In a filing Wednesday, Trump’s attorneys urged the Supreme Court to “decline that invitation” from Smith and allow the U.S. Circuit Court of Appeals to next hear the appeal, asserting that Smith is pushing the court to “decide the issues with reckless abandon.”

According to the amicus brief, the appointment of Smith violates the “Appointments Clause” of the Constitution, which, the brief said, “requires that all federal offices ‘not otherwise provided for’ in the Constitution must be ‘established by Law.'”

“There is no statute establishing the Office of Special Counsel in DOJ,” the brief said. “The statutory provisions relied upon by DOJ and lower courts for the appointment of special counsels over the past half-century do not authorize the creation and appointment of special counsels at the level of United States Attorneys.”

The brief argued that what federal statutes and the Constitution do not allow is for the attorney general “to appoint a private citizen, who has never been confirmed by the Senate, as a substitute U.S. attorney under the title ‘special counsel.'”

“That is what happened on November 18, 2022,” the brief said.