During Tuesday’s hearing, Republican Rep. Thomas Massie of Kentucky questioned Attorney General Merrick about the constitutionality of appointing Jack Smith as special counsel.
Garland, testifying before the House Judiciary Committee, was questioned by Massie about Smith’s appointment to oversee the classified documents and the Jan. 6 investigation into former President Donald Trump.
“What authority do you have to appoint a special counsel and create an agency within the United States government that doesn’t exist without Congressional authorization?” Massie asked Garland.
Massie pointed to an amicus brief filed by Ed Meese, a former attorney general under Ronald Reagan, in a Justice Department lawsuit against Trump that argued Garland’s appointment of Smith, a civilian, violated the Constitution’s Appointments Clause.
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Attorney General Merrick Garland testified before the House Judiciary Committee on Tuesday, June 4. (AP/Jose Luis Magana)
“Without the covering of federal authority, Smith is a modern-day version of the emperor with no clothes,” the report said.
“As an improper appointee, he has no more authority to represent the United States before this Supreme Court than Bryce Harper, Taylor Swift or Jeff Bezos,” they argued.
Meese argues that the “unlawfulness” of Smith’s appointment “is sufficient to dismiss Smith’s petition and the court should decline to review.”
Mies and company said Smith “is a person or group of people [including former President Donald Trump] “He violated the law in connection with any act aimed at disrupting the lawful transfer of power following the 2020 Presidential election or the certification of the electoral votes that occurred on or about January 6, 2021.”
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Special Counsel Jack Smith arrived in Washington, DC on August 1, 2023 to speak about the recently unsealed indictment containing four felony counts against former US President Donald Trump. (Drew Ungerer/Getty Images)
“There is a rule that the attorney general can appoint a special counsel that has been in place under both parties for 30 years, probably longer,” Garland told Massie. “The issue you’re asking about – whether you can appoint a Department of Justice official as a special counsel – has already been decided.”
Garland argued that special counsels appointed by him and other attorneys general, including Attorney General William Barr, cited regulations that allude to the statute.
But in briefs filed on several points of Trump’s lawsuit, Meese argued that “nothing in these statutes, or any other statute or provision of the Constitution, remotely authorizes the Attorney General to appoint a private citizen with the title of special counsel or to grant him special criminal law enforcement powers.”
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U.S. President Donald Trump presented the National Medal of Freedom to former Attorney General Edwin Meese during a ceremony in the Oval Office of the White House in Washington, D.C. on October 8, 2019. Meese was appointed Attorney General by President Ronald Reagan and served as Attorney General from 1985 to 1988. (Photo by Chip Somodevilla/Getty Images)
“Second, even disregarding the lack of statutory authority for this position, there is no law permitting the Attorney General, rather than the President with the advice and consent of the Senate, to appoint such a special counsel,” the former attorneys general wrote.
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Meese’s brief was also referenced by Justice Clarence Thomas in his questioning of President Trump’s immunity during oral arguments at the Supreme Court, which is expected to rule on the case later this month.
“It appears you’ve created a position that requires a congressional act, but there is no congressional act authorizing that. Even if you didn’t require a congressional act — and you’ve already admitted there was no congressional act creating this position — the Constitution says it would require a presidential nomination and Senate confirmation,” Massie told Garland.
