The appointment of Jack Smith as special prosecutor may prove difficult.
The U.S. Court of Appeals for the District of Columbia Circuit recommended that lawyers in Smith's criminal case against Trump prepare during an earlier trial. It is scheduled Oral argument Jan. 9 to address issues raised in briefs filed by the amicus curiae.
The court made this announcement after an explosive legal battle. simple Lawyers for former Attorney General Ed Meese argue that Attorney General Merrick Garland's appointment of special counsel Jack Smith is unconstitutional and the court must dismiss his charges against Trump. I filed a complaint.
Mr. Meese, along with Federalist Society co-chairman Stephen Calabresi and eminent constitutional law professor Gary Lawson, essentially argued that Mr. Garland improperly appointed Mr. Smith to a position that Mr. Garland did not have the authority to hold. claims.
Trump shared a Breitbart News summary article criticizing Smith's appointment to Truth Social.
“Biden’s crazy, deranged Jack Smith should rot in hell,” President Trump wrote, adding:
He is helping a corrupt and incompetent president destroy America through weaponization and election interference! Smith is a crooked prosecutor and shouldn't even be allowed to be in his position – that's prosecutorial misconduct. Ed Meese, the great Ed Meese of the Ronald Reagan era, made him a perfect figure.
Smith had been trying to fast-track the case against Trump for allegedly trying to overturn the 2020 election in order to convict the former president before the 2024 presidential election. But with Trump's victory, the U.S. Supreme Court rejected Smith's request for an expedited review of Trump's presidential immunity suit.
The case is likely to proceed through the normal process in the Court of Appeals, and from there to the Supreme Court.
But first, Mr. Smith's appointment itself may have to stand, as the Court of Appeal's announcement suggests.
The amicus brief (or “friend of the court”) filed by Mr. Meese, Mr. Calabresi and Mr. Lawson states that the office held by Mr. Smith was not created by Congress and that his appointment violates the Appointments Clause. They claim that they are not authorized to represent the United States because they are of the constitution. They argue that only Congress could create federal positions like the one Smith currently holds, but Congress has not done so.
While the Constitution creates the offices of president and vice president, it gives Congress the sole power to create additional offices and makes clear that these offices must be “created by law.” Congress previously passed a law authorizing a similar position called an “independent attorney,” but that law expired in 1999.
Lawyers argue that Garland cannot simply hire employees to perform tasks not authorized by Congress. Only “officers” can hold such a significant level of authority. By law, Congress gave the Justice Department certain powers when it was created, but the broad-power position of U.S. attorney that Garland gave to Smith (a position that requires Senate confirmation) was not authorized. There wasn't.
They argue that even if a special counsel were authorized by Congress (which has not been done since 1999), someone with such powers would require presidential nomination and Senate confirmation. .
U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee at the Rayburn House Office Building on September 20, 2023 in Washington, DC. (Win McNamee/Getty Images)
The brief further states that Mr. Smith is a “principal officer” under the Constitution's Appointments Clause because of special powers generally granted to U.S. attorneys, meaning he is first appointed by the president and then appointed by a majority. It is argued that approval must be obtained. US Senate.
“Smith, who is not properly clothed while under the authority of the federal government, is a modern-day example of a naked emperor.” has no authority to represent the United States in this court or in the underlying prosecution,” they wrote.
A pre-appointed special prosecutor is a court official confirmed by the Senate. A notable exception is Robert Mueller, who was appointed by Deputy Attorney General Rod Rosenstein in 2017 to oversee the alleged Russian interference in the 2016 presidential election, even though he no longer holds a federal job. was appointed as a public prosecutor.
Mr. Mueller's appointment would also likely be unconstitutional, Mies argues in his court brief.
But perhaps most importantly, the appeals court argued in the Meese court brief that it concluded that federal courts should dismiss all charges against Mr. Smith, including all of Mr. Smith's pending charges against Trump. There is a possibility that we will consider this.
Oral argument will be held on January 9, 2024 at 9:30 a.m. ET.
The case is us vs trumpNo. 23-3228 of the U.S. Court of Appeals for the District of Columbia Circuit.
Bradley Jay is Breitbart News' Capitol Hill correspondent. Follow him on X/Twitter. @BradleyAJay.
