Legal Scholars Claim Jack Smith Wasn’t Lawfully Appointed

By Victor Winston, updated on January 13, 2024

A controversial legal challenge has emerged at the Supreme Court. Former Attorney General Edwin Meese, alongside esteemed law professors Steven Calabresi and Gary Lawson, has filed a brief questioning the legality of special counsel Jack Smith's appointment in the case against former President Donald Trump.

The claim centers on Smith's status as a private citizen at his appointment, allegedly violating constitutional and statutory norms for such a high-profile prosecutorial role.

At the heart of the challenge is the assertion that Smith, who was a private citizen before his appointment by Attorney General Merrick Garland, lacked the necessary constitutional and statutory backing for such a significant role. The brief, spanning 25 pages, argues that this appointment deviates from the established norms of appointing a special counsel within the Department of Justice (DOJ).

Case history brings scrutiny to the special counsel's role

Historically, appointments like those of Fitzgerald, Rosenstein, Huber, and Durham, all former U.S. Attorneys, complied with the criterion of having served in the DOJ. This precedent, the filing asserts, casts doubt on the legitimacy of Smith's role, who has not followed a similar path.

The filing comes at a critical juncture, with the Supreme Court considering whether to expedite Smith's case, which includes allegations of Trump's attempts to overturn the 2020 election results and mishandling classified documents.

The question of Smith's authority briefly surfaced during oral arguments at the D.C. Circuit Court of Appeals, Washington Times reported.

The Department of Justice (DOJ) has refrained from commenting on this latest development. However, the issue has stirred a mix of reactions, with some legal experts questioning the credibility of the argument, while others, like Curt Levey, president of the Committee for Justice, see potential in the challenge.

Debate over special counsel's authority intensifies

Meese, Calabresi, and Lawson's argument is grounded in the principle that a lawful special counsel must be a former DOJ official appointed by the President and confirmed by the Senate, criteria Smith does not meet. The trio further contends that any legal actions undertaken by Smith, owing to his appointment's alleged illegality, are themselves unlawful.

This contention is not just a legal technicality but raises profound questions about the balance of power and the proper procedure in high-stakes judicial appointments. The brief underscores a fundamental debate over the bounds of executive authority and the role of Senate confirmation in such appointments.

The brief emphasizes: "What federal statutes and the Constitution do not allow, however, 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.'" It labels the November 18, 2022, appointment of Smith as unlawful, challenging the legitimacy of all subsequent legal actions.

Legal experts weigh in on the unprecedented situation

While the DOJ has maintained silence on the matter, D. John Sauer, representing Trump, acknowledged the potency of the argument, yet noted its absence in their current legal strategy.

Reflecting on the implications of this challenge, Curt Levey opined that removing political and publicity factors might render it a winning argument. His perspective highlights the charged atmosphere surrounding the case and the difficulty in separating legal nuances from political considerations.

The brief's argument and its implications for the ongoing case against the former President have thus become a focal point for legal scholars and political observers alike. With a mix of reactions from various quarters, the debate over Smith's appointment and its legitimacy continues to unfold.

Supreme Court's decision awaited in landmark case

The recent filing by Meese, Calabresi, and Lawson at the Supreme Court brings to light a significant legal question: Can a private citizen, unconfirmed by the Senate, be lawfully appointed as a special counsel in such a high-profile case?

This question becomes even more critical as it pertains to the prosecution of a former president.

As the legal community and the public await the Supreme Court's decision, the arguments presented in the brief resonate with fundamental constitutional principles and the importance of adherence to legal norms in the appointment of officials wielding significant prosecutorial power.


The challenge to Jack Smith's appointment as special counsel by former Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson raises critical questions about constitutional and statutory requirements for such appointments.

Their argument hinges on the notion that a lawful special counsel must be a prior DOJ official, appointed by the president and confirmed by the Senate – a criterion Smith does not meet.

This development comes as the Supreme Court contemplates accelerating Smith's case involving former President Donald Trump, with Smith's authority and the legality of his actions under intense scrutiny.

The outcome of this challenge could have far-reaching implications for the justice system and the process of high-profile judicial appointments in the United States.

About Victor Winston

Victor is a freelance writer and researcher who focuses on national politics, geopolitics, and economics.

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