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Supreme Court

Special counsel in Trump case unconstitutional, former

Reagan AG says
Special Counsel Jack Smith has no more constitutional 'authority' than Taylor Swift, says former President Reagan AG Ed
Meese in brief
By Brianna Herlihy Fox News

Published December 21, 2023 12:41pm EST

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Jack Smith trying to convict Trump before the 2024 election: Jonathan Turley
FOX News contributor Jonathan Turley tells ‘America Reports’ why Department of Justice Special Counsel Jack Smith wants to convict former President
Donald Trump before the November 2024 election.

Former Attorney General Ed Meese has presented arguments to the Supreme Court that
they should reject Special Counsel Jack Smith’s requests because he was
unconstitutionally appointed in the first place.

Meese, along with law professors Steven G. Calabresi and Gary S. Lawson, filed a friend-
brief Wednesday to present the case that Attorney General Merrick Garland’s
appointment of Smith — a private citizen — is in violation of the Appointments Clause of
the Constitution.

"Not clothed in the authority of the federal government, Smith is a modern example of the
naked emperor," the brief states.

"Improperly appointed, he has no more authority to represent the United States in this
Court than Bryce Harper, Taylor Swift, or Jeff Bezos," they argued.

RED STATE AGS BLAST SPECIAL COUNSEL PUSH FOR SCOTUS TO RUSH TRUMP CASE:
‘PARTISAN INTERESTS’

Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment, including four felony counts against
former President Donald Trump in Washington, D.C., on Aug. 1. (Drew Angerer/Getty Images)

The brief was filed in response to Smith’s request to the court to expedite former President
Donald Trump’s case arguing presidential immunity for his actions on Jan. 6, 2021, which
are connected to criminal charges brought by Smith.

Meese argues that the "illegality" of Smith’s appointment is "sufficient to sink Smith’s
petition, and the Court should deny review."

Meese and company noted in the brief that Smith was appointed "to conduct the ongoing
investigation into whether any person or entity [including former President Donald Trump]
violated the law in connection with efforts to interfere with the lawful transfer of power
following the 2020 presidential election or the certification of the Electoral College vote
held on or about January 6, 2021."

While Garland cited as statutory authority for this appointment, Meese argues that "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 former
AG wrote.

SPECIAL COUNSEL JACK SMITH CALLS ON SUPREME COURT TO RULE ON TRUMP

IMMUNITY CLAIM

Former Attorney General Edwin Meese delivers remarks after being awarded the National Medal of Freedom by President
Donald Trump during a ceremony in the Oval Office at the White House in Washington, D.C., on Oct. 8, 2019. (Chip
Somodevilla/Getty Images)

"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. No such statute exists for the Special Counsel," he added.

Meese, who served as attorney general under former President Reagan, said "the 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."

Earlier this month, Smith petitioned the high court to decide Trump’s immunity claims in
his case facing charges related to his efforts to overturn the 2020 election results.

FEDERAL JUDGE DENIES TRUMP'S CLAIM OF PRESIDENTIAL IMMUNITY IN SPECIAL

COUNSEL JACK SMITH'S JAN. 6 CASE

The Supreme Court in Washington, D.C. (AP Photo/Jacquelyn Martin)

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.

Smith wants the court to expedite the claims in hopes to keep Trump’s Washington, D.C.,
trial — scheduled to begin March 4 — on track.

Brianna Herlihy is a politics writer for Fox News Digital.

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