Former Attorney General Ed Meese, joined by law professors Steven G. Calabresi and Gary S. Lawson, has boldly presented compelling arguments to the Supreme Court. They advocate for the dismissal of Special Counsel Jack Smith’s requests, alleging an unconstitutional appointment by Attorney General Merrick Garland.
Meese’s friend-of-the-court brief emphasizes the violation of the Constitution’s Appointments Clause, characterizing Smith as a “modern embodiment of the naked emperor.” The document underscores the absence of federal government authority in Smith’s position, drawing parallels to private individuals such as Bryce Harper, Taylor Swift, or Jeff Bezos.
“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.
This response follows Smith’s request to fast-track the case involving former President Donald Trump’s claims of presidential immunity tied to the events of January 6, 2021, and connected to criminal charges brought by Smith.
Meese’s argument centers on the asserted “illegality” of Smith’s appointment, suggesting that this alone should reject Smith’s plea and discourage the Court from reviewing the case.
The brief sheds light on Smith’s appointment to supervise an ongoing investigation into potential violations related to the lawful transition of the 2020 presidential election, including allegations against former President Trump. Meese argues that none of the cited statutes or constitutional provisions justify the Attorney General appointing a private citizen as Special Counsel.
“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.”
Meese contends that the Appointments Clause is compromised by the absence of statutory authorization for such an appointment, compounded by the Attorney General lacking a specific statute empowering them to make such appointments, thereby undermining the legality of Smith’s position.
“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.
Highlighting the necessity of presidential appointment and senatorial confirmation for principal officers, Meese, who held the position of attorney general in the Reagan administration, argues that the Special Counsel, if considered a legitimate officer, should undergo this process irrespective of any statutory assertions.
“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.
Recently, Smith filed a petition with the Supreme Court seeking to expedite Trump’s immunity claims. The goal is to hasten the high court’s consideration ahead of lower federal court rulings, with the aim of adhering to the schedule for Trump’s upcoming trial in Washington, D.C., scheduled to begin on March 4.
