According to former President Ronald Reagan’s Attorney General Ed Meese, special counsel Jack Smith is a “naked emperor” whose requests should be rejected by the Supreme Court because he was unconstitutionally appointed to begin with.
Meese joined forces with law professors Steven G. Calabresi and Gary S. Lawson to file a friend-of-the-court brief on Wednesday arguing that, as a private citizen, Smith’s appointment by Attorney General Merrick Garland violates the Appointments Clause of the Constitution.
According to Congress’s government website, Article II, Section 2, Clause 2 of the Constitution states that the President of the United States “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Congress explains:
The Appointments Clause requires that Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments.1 The Supreme Court has interpreted these requirements as distinguishing between two types of officers: (1) principal officers who must be appointed by the President and confirmed by the Senate to their position, and (2) inferior officers, whose appointment Congress may place with the President, judiciary, or department heads.
These constitutional provisions are instrumental in ensuring the separation of powers, as the Framers of the Constitution deliberately separated Congress’s power to create offices in the federal government from the President’s authority to nominate officers to fill those positions.
“Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute… and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation,” Meese wrote, according to Fox News Digital. “No such statute exists for the Special Counsel.”
“[T]he Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say,” Meese argued.
Garland cited as statutory authority for his appointment of Smith. But, according to Meese and company, “none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
“Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel,” the stated.
And that, according to Meese, makes Jack Smith a “naked emperor” with no more authority than “Taylor Swift.”
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief notes. “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
In a bid to ensure Trump’s Washington, D.C., trial begins as scheduled on March 4, Smith petitioned the Supreme Court earlier this month “to decide Trump’s immunity claims in his case facing charges related to his efforts to overturn the 2020 election results,” Fox News Digital reports. “Smith asked for expedited consideration of the case to essentially have the high court take over jurisdiction before the lower federal courts have fully decided the matter.”
Meanwhile, House Judiciary Chair Jim Jordan (R-Ohio) has expanded his investigation into Smith, asking him to “turn over all documents and records related to his prosecutions of former President Trump,” The Hill reports.
Jordan, along with Rep. Andy Biggs (R-Ariz.) is demanding that Smith provide records “related to his successful bid to access Trump’s account on X, as well as for details on his staff, their salaries and the cost of any travel.”
#NEWS: @Jim_Jordan & @RepAndyBiggsAZ to Jack Smith:
“If the Department of Justice continues stonewalling the investigation, the Committee may be forced to resort compulsory process.” pic.twitter.com/VPBbrhDeMe
— House Judiciary GOP (@JudiciaryGOP) December 21, 2023
Both Smith’s election interference case and his Espionage Act case against former President Trump are included in the requests.
“The Committee on the Judiciary is continuing its oversight of the Biden Justice Department’s commitment to impartial justice and its handling of an unprecedented investigation and prosecution of President Biden’s chief opponent in the upcoming presidential election,” Jordan and Biggs wrote to Smith.
“Based on publicly available information, the Committee has significant concerns about your commitment to evenhanded justice,” they stated. “You have a record of attempting to criminalize political discourse, as evidenced by your reported interest in how the Justice Department could prosecute conservative tax-exempt groups engaging in constitutionally protected political speech.”
“If you do not produce documents responsive to these requests,” the lawmakers warned, “the Committee may resort to compulsory process.”
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Melissa Fine is the former executive editor of Casino Player, Strictly Slots, and Poker
Digest magazines. She is a UCLA graduate, news junkie, and dedicated Stargate SG-
1 fan. Melissa currently lives with her dog and two cats in a tiny town in the Sierra
Nevada foothills.
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