The federal court scheduled to hear special counsel Jack Smith's case against former President Donald Trump has instructed his lawyers to be prepared to answer questions about the constitutionality of Smith's appointment.
On Tuesday, Ed Meese, a former attorney general under President Ronald Reagan, went to court in a lawsuit against Trump alleging that Attorney General Merrick Garland's appointment of Smith, a civilian, violated the Congressional Appointments Clause. I submitted a friend preparation document. Constitution.
“Smith, who has not properly clothed himself with the authority of the federal government, is a modern-day example of a naked emperor.” “There is no authority to represent the United States in any prosecution: Buffett or Beyoncé,” the brief alleges.
On Thursday, the court issued an order directing attorneys for both parties to “be prepared to respond to questioning from the court before the tribunal by addressing the specific issues raised in the brief filed by the tribunal.” I put it out.
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President Donald Trump awards former Attorney General Edwin Meese with the National Medal of Freedom during a ceremony in the Oval Office of the White House in Washington, DC, on October 8, 2019.
The brief was filed in Smith's lawsuit against the 45th president on criminal charges related to Trump's actions on January 6, 2021, with oral arguments scheduled for Tuesday, January 9. has been done.
Will Schaaf, the former president's lawyer, said in an interview on Fox News Digital that the order shows the court is taking the amicus brief “seriously.”
“I think this order makes clear that the circuit court panel has carefully considered the briefs filed in this case and takes those briefs seriously,” Schaaf said. Ta.
Meese, along with academics Stephen G. Calabresi and Gary S. Lawson, argued in a brief that “Jack Smith lacks the authority to bring a substantive prosecution.”
“These actions can only be taken by a properly appointed federal employee of a properly established federal agency. Neither Smith nor the special counsel position under which he is acting is subject to these standards. “And that is a serious problem for the rule of law in America – no matter what you think about the defendant or the conduct at issue in the underlying prosecution,” they wrote.
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Mies was appointed attorney general by President Ronald Reagan and served from 1985 to 1988. ((Photo by Chip Somodevilla/Getty Images))
Meese and his colleagues noted in their brief that Smith was “appointed to conduct an ongoing investigation into the existence of any persons or entities.” [including former President Donald Trump] Violated the law in connection with efforts to disrupt the lawful transfer of power following the 2020 presidential election or the certification of electoral votes that took place on or about January 6, 2021. ”
Garland cited legal authority for the appointment, but Meese said, “Neither these statutes nor any other statute or constitutional provision remotely authorizes the attorney general to make a civilian appointment; It did not confer any special criminal law enforcement powers in the name of enforcement officers.” Special prosecutor. ”
“Second, even overlooking the lack of statutory authority for this office, the statute confers special authority on the Attorney General, rather than the President, to appoint such a special prosecutor with the advice and consent of the Senate. No,” he said. Written by a former AG.
“Under the Appointment Clause, junior officers may be appointed by department heads.” only if Congress so directs By law…and directs with sufficient specificity to overcome the presumption of clear statements in support of presidential appointments and senatorial confirmations. There is no such law for special prosecutors,” he added.
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Special Counsel Jack Smith arrives in Washington, DC on August 1, 2023 to address the recently unsealed indictment containing four felonies against former President Donald Trump. (Drew Angerer/Getty Images)
Meese said, “If a special prosecutor is a legitimate official, he or she is a superior (or a principal) rather than a junior official, so regardless of the intent of the statute, the special prosecutor should be appointed by means other than presidential appointment and senatorial approval. I can't do that,” he said.
Meese argued that the court “has discretion to consider challenges to the Appointments Clause first raised on appeal.”
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“Judicial economics also suggests that this court decide the appointment clause issue now; otherwise, if the case is remanded, the defendant will simply raise it in district court; “This court will face this issue again on appeal. Therefore, this panel is free to invalidate Smith's claims, and it should do so,” he said. .
