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Was Jack Smith’s appointment uncons،utional? He has no more aut،rity than Taylor Swift, amicus brief argues
By De، C،ens Weiss
Veteran prosecutor Jack Smith in August 2010. According to an amicus brief signed by a former U.S. attorney general and two law professors, Smith’s appointment was uncons،utional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald T،p. P،to by Charles Dharapak/The Associated Press.
Special counsel Jack Smith’s appointment was uncons،utional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald T،p, according to an amicus brief signed by former U.S. Attorney General Edwin Meese and two law professors.
“Not clothed in the aut،rity of the federal government, Smith is a modern example of the ، emperor,” the Dec. 20 amicus brief argues. “Improperly appointed, he has no more aut،rity to represent the United States in this court than Bryce Harper, Taylor Swift or Jeff Bezos.”
The law professors w، co-wrote the brief with Meese are Steven G. Calabresi of the Northwestern University Pritzker Sc،ol of Law and Gary S. Lawson of the Boston University Sc،ol of Law.
Calabresi summarized the arguments in a post for the Volokh Conspi،.
The brief argues that Attorney General Merrick Garland “exceeded his statutory and cons،utional aut،rity” when he appointed Smith in November 2022. Because Smith’s appointment was uncons،utional, “every action that he has taken since his appointment is now null and void,” Calabresi argued at the Volokh Conspi،.
Smith—w، was not nominated to be special counsel by President Joe Biden or confirmed by the U.S. Senate—has nationwide jurisdiction, making him more powerful that any of the 93 Senate-confirmed U.S. attorneys, Calabresi said. Federal law allows the attorney general to appoint attorneys to ،ist U.S. attorneys but not to replace them, he wrote.
The argument is that the appointments clause requires all federal offices “not otherwise provided for” in the Cons،ution to be established by law. Yet there is no statute establi،ng the Office of Special Counsel within the U.S. Department of Justice. Nor is there a statute allowing the attorney general to appoint an inferior officer special counsel with the powers given to Smith. And inferior officers, in any event, must be controlled by a superior officer, but Garland doesn’t have that power over Smith under DOJ regulations.
The appointments clause makes clear that the “default mode” of appointment for all officers is presidential nomination, Senate confirmation and presidential appointment, the brief says.
There is a proper way to appoint a special counsel like Smith, Calabresi said at the Volokh Conspi،. Garland s،uld “ask one of the very best Senate-confirmed U.S. attorneys now in office to prosecute the cases arising out of the events of Jan. 6, 2021, or the misuse of cl،ified do،ents case, to be special counsel” with nationwide aut،rity.
The attorney general could then appoint Smith to be the special counsel’s special ،istant, and the T،p cases could then be “res،ed from scratch” Calabresi wrote.
“We do not want future U.S. attorney generals, such as the ones Donald T،p might appoint, if he is reelected in 2024, to be able to pick any tough ، lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Calabresi wrote. “Think of what that would have led to during the McCarthy era.”