On Thursday, April 25th the Supreme Court will hear oral argument in Trump v. United States. An amicus brief has been signed in this case by former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, along with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland. The brief, filed by Gene Schaerr, is based on a law review article by Gary Lawson and another individual titled Why Robert Mueller’s Appointment as Special Counsel was Unlawful, published in the Notre Dame Law Review in 2019. The argument is that Smith lacks standing to defend the D.C. Circuit’s denial of Donald Trump’s claim of inherent presidential immunity due to his unconstitutional appointment. Smith is considered a private citizen in the eyes of the law, rendering all his actions since his appointment null and void.
It is asserted that only Congress has the authority to create the Office of Special Counsel to which Jack Smith was appointed. The power to create federal offices is solely a congressional power and cannot be assumed by the executive branch. The Attorney General is allowed to designate Senate-confirmed U.S. Attorneys as Special Counsels, but not private individuals like Jack Smith.
Examining the organic statutes of the Justice Department reveals that the power to appoint Special Counsels is more limited compared to other departments. While certain cabinet secretaries have broad authority to appoint officers and employees, the Attorney General’s power is restricted to Senate-confirmed U.S. Attorneys. This limitation is crucial to safeguard American liberty and prevent the misuse of power by corrupt officials.
The argument concludes that the appointment of Jack Smith as Special Counsel was unconstitutional and lacks legal basis. The statutes governing the Justice Department do not authorize the appointment of private citizens like Smith to such positions. Therefore, Smith’s actions and decisions as Special Counsel are invalid and can be legally challenged.
The amicus brief will be posted on SSRN for public access, providing a detailed analysis of the legal framework surrounding the appointment of Special Counsels within the Justice Department. It is emphasized that upholding the constitutional principles of appointment and authority is essential to preserving the integrity of the justice system.
This section outlines the Attorney General’s authority to appoint attorneys to assist United States attorneys in cases where the public interest necessitates it, including the appointment of qualified tribal prosecutors for Federal offenses in Indian country. Section 543 specifically grants the Attorney General the power to appoint inferior officers for this purpose, rather than to replace them as seen in Jack Smith’s appointment.
It is crucial that any federal prosecutions of former President Donald Trump are conducted in a manner that upholds the constitution, regardless of personal opinions towards him or his actions on January 6, 2021. In this case, the appointment of Special Counsel Jack Smith appears to overstep boundaries and raises concerns about maintaining a fair and impartial process.
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