New Supreme Court Filing Seeks To Strip Jack Smith Of Authority

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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 similar to that of a U.S. attorney, being classified as a “principal officer” under the Appointments Clause of the Constitution.

As such, it stipulates that confirmation by a majority vote in the U.S. Senate is required subsequent to 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 write.

These briefs primarily argue against the Supreme Court granting Smith’s petition to transfer the case to the high court, as their rationale would necessitate lower federal courts to dismiss Smith’s entire range of prosecutions, including all pending charges against Trump.

During Ronald Reagan’s presidency, Meese served as Attorney General, with Congress’s approval of independent counsel playing a significant role at that time.

Trump grabbed headlines recently by seizing on a comment made by Smith in a recent court filing.

Trump asserted in a court filing on Friday that Smith had acknowledged taking direction from President Joe Biden, as per a post on his Truth Social platform on Saturday.

“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 in a post.

“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.

Trump seems to be mentioning a recent filing from Thursday in a different lawsuit that Smith initiated against him. The lawsuit accuses Trump of unlawfully keeping classified documents at his Mar-a-Lago property in Florida after his time in the White House, and ignoring government requests to hand them over.

In addition, Trump has denied any wrongdoing in this particular case.

The filing indicates that Smith was hired externally from the Department of Justice to conduct a comprehensive investigation.

“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.”

As Trump seeks to regain the White House in November, he is facing four investigations, two of which were initiated by Smith.

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