Supreme Court Petition Filed To Strip Jack Smith of Special Counsel Status

Supreme Court Petition Filed To Strip Jack Smith of Special Counsel Status

Lawyers for former Attorney General Edwin Meese and two of the country’s leading legal scholars argued in a brief filed Wednesday with the U.S. Supreme Court that justices must reject Jack Smith’s petition regarding former President Donald Trump because his special counsel appointment wasn’t constitutional.

Their amicus brief argues that Smith’s representation of the United States in his petition for certiorari to the Supreme Court is invalid because he lacks the necessary authority. They claim that Congress has not established the position he holds, and his appointment is in violation of the Constitution’s “Appointments Clause.”

The filing asserts that U.S. Attorney General Merrick Garland made an improper appointment of Smith to a non-existent office, for which Garland lacks the necessary authority. Meese, Steven Calabresi, the co-chairman of the Federalist Society, and Gary Lawson, a renowned constitutional law professor, argue that only Congress has the authority to create federal positions like the one Smith currently holds, and Congress has not exercised this power.

The filing argues that although the Constitution establishes the positions of President and Vice President, Congress has exclusive authority to create additional positions, as the Constitution mandates that such positions must be “established by law.”

Congress had previously enacted legislation to authorize a similar role known as the “independent counsel,” but this statute expired in 1999.

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.’” The filing also contends that even if Congress authorized special counsels, anyone holding such authority would require presidential nomination and Senate confirmation.

The filing also argued that Smith’s authority is akin to that of a U.S. attorney, making him a “principal officer” under the Appointments Clause of the Constitution. Consequently, confirmation by a majority of the U.S. Senate is required after his nomination by the president.

“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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