Jack Smith's appointment as special counsel is unconstitutional and so the Supreme Court must reject his petition against Donald Trump, lawyers representing former Attorney General Ed Meese and two top constitutional scholars in the country argued in a brief filed on Wednesday.
Their amicus brief argues that Smith lacks authority to represent the United States by asking the Supreme Court to weigh in because the office he holds has not been created by Congress and his appointment violates the "Appointments Clause" of the Constitution.
The filing essentially claims U.S. Attorney General Merrick Garland improperly appointed Smith to an office that does not exist with authority Garland does not possess.
Meese, Steven Calabresi, the co-chairman of the Federalist Society, and Gary Lawson, a prominent constitutional law professor, first argue that only Congress can create federal offices such as Smith currently holds, which Congress has not done.
In creating the Department of Justice, Congress gave it certain powers by law, yet it authorized no office with all the powers of a U.S. Attorney that Garland has given Smith.
The amicus brief further argues, "Even if one somehow thinks that existing statutes authorize 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 assert even if special counsels were authorized by Congress, anyone in possession of such powers would require presidential nomination and Senate confirmation.
The brief argued that Smith has so much power, just like a U.S. Attorney, he is a "Principal officer" under the Constitution's Appointments Clause, which means he must first be nominated by the president and then confirmed by a majority of the U.S. Senate.
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