Jack Smith’s Case Against Trump Unconstitutional: Reagan AG

 December 22, 2023

A profound challenge has been mounted against the constitutionality of Special Counsel Jack Smith's appointment.

Former Attorney General Ed Meese, joined by law professors, contends that Jack Smith's appointment as Special Counsel is unconstitutional, sparking a legal showdown in the Supreme Court.

Ed Meese, Steven G. Calabresi, and Gary S. Lawson have filed a significant friend-of-the-court brief. This action represents a key development in the ongoing legal disputes surrounding the investigation into former President Donald Trump’s actions. The brief questions the constitutional validity of Attorney General Merrick Garland's decision to appoint Jack Smith.

Challenging the Constitutionality of Smith's Role

The brief vividly compares Smith to "a modern example of the naked emperor," indicating a strong opinion on his lack of authority. The authors argue that Smith’s authority to represent the United States in court is fundamentally flawed. This challenge stems from Smith’s recent moves to expedite Donald Trump’s case regarding the January 6, 2021, events.

Meese, who served under President Reagan, emphasizes the alleged "illegality" of Smith's appointment. He argues that this illegality undermines Smith's petition to the Supreme Court. The brief claims that there is no specific statutory authority for the Attorney General to appoint such a Special Counsel, insisting on the need for a presidential appointment and senatorial confirmation for such a position.

"The illegality of Smith’s appointment is sufficient to sink Smith’s petition, and the Court should deny review. 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."

Implications for Presidential Immunity and Legal Proceedings

Smith's investigation focuses on potential legal violations related to the 2020 presidential election and the certification of the Electoral College vote. He petitioned the Supreme Court earlier this month, seeking a rapid decision on Trump’s immunity claims. He aims to maintain the Trump trial scheduled for March 4 in Washington, D.C.

Surrounding the core issue are broader debates and legal challenges. These include the constitutionality of appointments and actions, especially regarding events surrounding the 2020 election and January 6, 2021.

Jack Smith was specifically appointed to investigate possible violations connected to these events, with former President Donald Trump facing charges related to efforts to overturn the 2020 election results.

A Deeper Look at the Legal Arguments

The brief questions the very foundation of Garland's statutory authority for appointing Smith. Its authors argue that no specific statutory authority exists for the Attorney General to make such an appointment. This contention adds a complex layer to the ongoing legal debate surrounding the January 6, 2021, events.

Meese added:

"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."

The implications of the legal challenge are profound. If the court finds merit in the claims of Meese and his colleagues, it could derail the timeline for Trump's trial and cast doubt on the validity of past and future actions taken by Smith in his role as Special Counsel.


This legal challenge by Ed Meese and others raises significant constitutional questions regarding appointing Special Counsels and the balance of power within the U.S. government. As the Supreme Court considers this matter, the outcome will have lasting implications for presidential powers and the legal framework within which they operate.

  • Ed Meese and others filed a brief to challenge the constitutionality of Jack Smith's appointment.
  • The brief questions the authority of the Attorney General to appoint a Special Counsel without specific statutory authority.
  • Meese emphasizes the need for presidential appointment and senatorial confirmation for such roles.
  • The challenge is against Smith’s authority to represent the United States in court.
  • The outcome of this legal battle could have significant implications for the balance of power within the U.S. government.

About Robert Cunningham

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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