Attorneys for former Attorney General Ed Meese and constitutional law scholars filed a brief arguing that the Supreme Court must reject special counsel Jack Smith’s petition against Donald Trump, as Smith’s appointment is unconstitutional.
They contend that Congress alone has the authority to create positions like Smith’s, and did not do so here.
The amicus brief states, “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.’”
While past legislation authorized independent counsels, Smith does not qualify as he was not nominated by the president and confirmed by the Senate, as the Appointments Clause requires for a principal officer like a US Attorney.
The lawyers argue Smith therefore has no authority to represent the US or bring prosecutions.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” they wrote.
If accepted, this would require dismissal of all charges against Trump.
Trump claims a court filing shows Smith takes direction from Biden, though the filing says Smith retains independent decision-making despite ultimate supervision by the attorney general.
The legality of Smith’s appointment as special counsel is central to several ongoing investigations of Trump.
“While Crooked Joe Biden and his Cronies have claimed from the outset they have nothing to do with Jack Smith’s Election Interference case against me, Smith himself admitted in a Court Filing yesterday that he ‘remains subject to Attorney General direction and supervision,’ and that includes Biden,” Trump wrote.
“That’s right, Jack Smith just admitted what the American People already know, namely, that his case is being directed and supervised by the Biden Administration. So, although he denies it, [Attorney General Merrick] Garland is carrying out the orders from his boss to prosecute me, and to interfere in the 2024 election,” Trump added.
“While he remains subject to attorney general direction and supervision, he also retains ‘a substantial degree of independent decisionmaking’ […] a is not part of the regular department chain of command or ‘subject to the day-to-day supervision of any official of the department,” the filing reads.
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