In a significant legal development, Ed Meese, the former Attorney General under President Reagan, has filed a brief with the Supreme Court, challenging the constitutional legitimacy of Special Counsel Jack Smith's appointment by Attorney General Merrick Garland.
The brief contends that Smith's appointment violates the Appointments Clause of the Constitution and asserts that Garland lacked the statutory authority to appoint a private citizen like Smith as a special counsel.
This case has garnered national attention due to its potential impact on Smith's charges against former President Trump. These charges relate to Trump's alleged actions surrounding the January 6, 2021 events. Meese argues that Smith, as a private citizen, should not have been appointed to this significant role, which typically requires presidential appointment and senatorial confirmation.
Ed Meese's involvement brings significant weight to the case, given his background as Attorney General under Reagan. The brief he filed, co-authored with two law professors, questions the constitutional grounds of Smith's appointment. They argue that the Attorney General's authority does not extend to appointing a private citizen to such a high-profile, influential role.
The timing of this legal challenge is crucial as it coincides with Smith's request to the Supreme Court to expedite a decision on former President Trump's claims of immunity. Smith aims to keep the trial, scheduled for March 4, on track, asserting that Trump's claims lack merit and should not delay the proceedings.
Meese's brief elaborates on the perceived constitutional breach, stating, "Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," further arguing that "Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos."
At the heart of Meese's argument is the Appointments Clause of the U.S. Constitution, which dictates the process by which certain federal officers are appointed. The brief emphasizes that Smith, a private citizen, should not have been appointed as a special counsel without going through the prescribed constitutional process.
Meese and his co-authors assert that even if one were to overlook the lack of statutory authority, no statute specifically allows the Attorney General to appoint a special counsel without presidential appointment and Senate confirmation. This aspect of their argument challenges the very foundation of how special counsels have been appointed in recent times. The former AG wrote:
"... 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."
Meese further argues that the special counsel should be classified as a superior or principal officer if deemed a valid officer. This classification would necessitate presidential appointment and senatorial confirmation, regardless of any statutes to the contrary.
The sequence of events leading to this legal challenge began in November 2022, when Attorney General Garland appointed Jack Smith as Special Counsel. This move was followed by Smith filing charges against former President Trump in December 2022, related to the events of January 6, 2021.
In the same month, Smith requested the Supreme Court to expedite its ruling on Trump's claims of immunity, which seems to have triggered Meese's legal challenge. Meese's brief was filed in direct response to this request, aiming to question the legitimacy of Smith's authority to bring charges against Trump and to conduct the trial set for March 2023.
Meese's involvement and his background as Attorney General under Reagan add a layer of complexity to the case, as it brings into question the long-standing practices surrounding the appointment of special counsels in the U.S. legal system.
The outcome of this legal battle holds significant implications for the upcoming trial of former President Trump, scheduled to begin in March 2023. If the Supreme Court finds Smith's appointment unconstitutional, it could potentially derail the trial or at least delay it significantly.
Furthermore, this challenge could have broader implications for appointing special counsels. A ruling favoring Meese's argument could necessitate a review and possible overhaul of the process, impacting how similar cases are handled.