The Biden Administration’s attempts to engage former President Donald Trump in lawfare could be headed for a major roadblock. And by “major,” I mean Supreme Court level major. Former Attorney General Ed Meese, Professor Gary Lawson, and Steven Calabresi have filed a writ of certiorari with the Supreme Court. This legal document essentially asks the Supreme Court to review a lower court’s ruling. In this case, they want the court to declare that Jack Smith, who is currently acting as Special Counsel, was never constitutionally appointed. If successful, this would render all actions he has taken legally moot. Talk about a plot twist!
Now, let’s take a moment to unpack why this is such a big deal. According to U.S. statutes governing the Department of Justice, only Congress can create offices subordinate to the Attorney General. But Smith was hired directly by current AG Merrick Garland, skipping the constitutional process of appointment by the President and confirmation by the full U.S. Senate. Oops!
This trio of legal minds argue in their petition that the various legal actions undertaken by Smith under color of law “can be taken only by persons properly appointed as federal officers to properly created federal offices.” They go on to say, “Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
In order to legally hold such expansive powers of investigation, subpoena, and indictment, Smith must be a “principal officer” under the Appointments Clause of the U.S. Constitution. This means he should have been properly nominated by the President and thoroughly vetted during a Senate confirmation hearing. A process he likely would have never overcome.
As Steven Calabresi explains, “The fact of the matter is that everything Jack Smith has done as Special Counsel, since his appointment on November 18, 2022, has been unconstitutional and is null and void.”
But perhaps the most damning statement of Smith’s unconstitutional appointment comes from the text of the brief itself stating, “Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
This case serves as a stark reminder that every action taken within our government should be scrutinized for its constitutionality. After all, we are a nation of laws, not men. And those laws must be respected and adhered to, regardless of political agendas.