Former AG Claims Jack Smith’s Special Counsel Appointment Is Unconstitutional

 December 21, 2023

A legal challenge has emerged against Jack Smith's appointment as special counsel, stirring up constitutional debates.

The appointment of Jack Smith as special counsel is now facing a significant legal challenge on constitutional grounds.

The core of the dispute revolves around the claim that Smith's role, created without Congressional approval, defies the Constitution's Appointments Clause. This argument was spearheaded by former Attorney General Ed Meese alongside legal scholars Steven Calabresi and Gary Lawson. Their contention is rooted in the belief that such an appointment requires legislative authorization.

Legal Experts Question the Constitutional Validity of Smith's Role

The attorneys argue that Attorney General Merrick Garland exceeded his legal boundaries by appointing Smith. According to them, Smith's position is not recognized by Congress, and they emphasize that creating federal offices is a power reserved exclusively for Congress.

They compare this situation to the "independent counsel" position, which had Congressional support until it ended in 1999. This comparison is used to emphasize their point that such positions need to be officially sanctioned by the legislature. The lawyers contend that Smith's appointment and subsequent actions are invalid without being established and approved by Congress.

Adding to the complexity, the brief implies that even if a special counsel role is permitted, it would require being nominated by the President and confirmed by the Senate. According to their interpretation, Smith's role should be considered a "principal officer," necessitating a more official appointment process under the Constitution. This challenges how special counsels are appointed in the U.S. legal system.

Implications for High-Profile Cases Under Scrutiny

One significant aspect of this challenge is its implications for high-profile legal cases, particularly those involving former President Donald Trump. The attorneys maintain that Smith’s improper appointment strips him of any authority to prosecute or represent the U.S. in these cases. This argument places a shadow of doubt over ongoing legal proceedings, including the notable case of United States v. Trump, No. 23-624.

Ed Meese's team argues:

“Smith lacks authority to represent the United States...because the office he holds has not been created by Congress and his appointment violates the 'Appointments Clause' of the Constitution."

The challenge extends beyond Smith's individual role, spotlighting the broader issue of the role of special counsels and their constitutional legitimacy. This situation draws comparisons to past periods when independent counsels were Congressionally authorized, highlighting shifts in legal interpretations and practices over time.

Debating the Balance of Power in Federal Appointments

The legal brief also accuses Garland of stepping beyond his bounds by appointing Smith. It asserts that Garland attempted to establish a role with powers not sanctioned by Congress, thus breaching the constitutional separation of powers. This accusation adds another layer to the debate, questioning the limits of executive authority in federal appointments.

They argue that "Garland cannot hire a mere employee to perform tasks that Congress has not authorized." This statement emphasizes their view on the limitations of executive power concerning federal appointments.

Furthermore, the attorneys present a striking analogy to drive their point home. They state, "Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos." This comparison is designed to vividly illustrate the perceived illegitimacy of Smith’s role under the current legal framework.

Far-Reaching Consequences for the Judicial System

The challenge, if successful, might lead to the dismissal of all prosecutions led by Smith, including those against Trump. Such an outcome would not only affect specific legal cases but also set a precedent regarding the appointment and authority of special counsels in the future.

The Supreme Court's response to Smith’s petition to take the case will be closely watched. It will provide crucial insights into how the judiciary interprets the balance of power between the different branches of government, especially in the context of federal appointments.

As the legal and political communities await further developments, this challenge opens a critical debate on the constitutional boundaries of federal appointments and their enforcement.


This legal challenge to Jack Smith's appointment as special counsel raises fundamental questions about the constitutional process of federal appointments.

  • Jack Smith's appointment as special counsel is under legal scrutiny for potentially violating the Constitution's Appointments Clause.
  • Former Attorney General Ed Meese and legal scholars argue that the role was not established by Congress, thus lacking legitimacy.
  • They question Attorney General Merrick Garland's authority to appoint Smith without Congressional authorization.
  • There are significant implications for high-profile cases, including those against Donald Trump.
  • The Supreme Court's response to the challenge will have far-reaching implications for the judicial system.

About Aileen Barro

With years of experience at the forefront of political commentary, Robert Cunningham brings a blend of sharp wit and deep insight to his analysis of American principles at the Capitalism Institute.

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