From the article
“Was Special Counsel Jack Smith illegally appointed by Attorney General Merrick Garland and is his prosecution of former Pres. Donald Trump unlawful? That is the intriguing issue raised in an amicus brief filed in the Supreme Court by Schaerr Jaffe, LLP, on behalf of former Attorney General Ed Meese and two law professors, Steven Calabresi and Gary Lawson, in the case of U.S. v. Trump.” This is an interesting question… 🤨
From SAID article
“But what the law and the Constitution “do not allow,” argues the brief, “is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel.’” “Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute,” and there is no such statute giving Attorney General Merrick Garland such authority to appoint an “inferior officer” like the special counsel.
Meese and the law professors argue that regulations that were promulgated by former Attorney General Janet Reno after the Independent Counsel law lapsed and was not renewed, which allow the appointment of someone who is not a federal employee as a special counsel,”
And this is the important part!
“are unconstitutional and were beyond her power to create. The attorney general, they say, can appoint a private citizen to assist a U.S. Attorney acting as a special counsel, but not to replace him.”
Let me say that last part again
“BUT NOT TO REPLACE HIM”
Oh wait was my caps lock stuck on? Sorry 😢 not sorry to anyone offended by Capitol letters.
So it looks like Garland GAMED THE SYSTEM AGAIN!!!
Given that the DC Circuit has already addressed and rejected this argument
in the context of the appointment of private citizen Mueller, and that the DC Circuit relied on SCOTUS language in US v. Nixon to support the appointment, I think we can be comfortable that Jack’s appointment was valid.
The law professors even admit in their brief that Nixon has contrary language
but try to skirt this SCOTUS language as ill advised “dictum.” You never want to make that kind of argument before SCOTUS. And they never address why the prosecutions by Mr. Smith are void given that the other members of his team are DOJ employees. Seems like the remedy would be to disqualify Smith, not void the prosecution. Remember the entire purpose of special counsel is to have a decision maker who is independent of the DOJ. So the argument fails from a policy stand point as well.