The federal court set to hear special counsel Jack Smith’s case against former President Donald Trump has told the lawyers to be prepared to answer questions on the constitutionality of Smith’s appointment.
On Tuesday, Ed Meese, former Attorney General under Ronald Reagan, filed a friend-of-the-court brief in the case against Trump arguing that Attorney General Merrick Garland’s appointment of Smith — a private citizen — is in violation of the Appointments Clause of the Constitution.
"Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé," the brief argues.
On Thursday, the court issued an order that told counsel for both parties to "be prepared to address at oral argument…any inquiries by the Court regarding discrete issues raised in the briefs filed by amici curiae."
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The brief was filed in Smith’s case against the 45th president on criminal charges related to Trump’s actions on Jan. 6, 2021. The oral arguments are set for Tuesday, Jan. 9.
Will Scharf, attorney for the former president, told Fox News Digital in an interview that the order indicates that the court is taking the amicus briefs "seriously."
"I think the order makes it clear that the circuit court panel is carefully reviewing the briefs that have been filed in this case that they're taking those briefs seriously," Scharf said.
Meese, along with scholars Steven G. Calabresi and Gary S. Lawson, argue in the brief that "Jack Smith does not have authority to conduct the underlying prosecution."
"Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. 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," they wrote.
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.
"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.
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Meese 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."
Meese argued that courts "have discretion to consider Appointments Clause challenges raised for the first time on appeal."
"Judicial economy also points towards this Court deciding the Appointments Clause issue now, as otherwise Defendant will simply raise it before the District Court if the case is remanded and this Court will face the issue again on appeal. This panel is accordingly free to invalidate Smith’s appointment, and should do so," he said.
