Ruling Hints Appeals Court May Look at Jack Smith’s Special Counsel Appointment

By Jerry McConway, updated on January 3, 2024

Special Counsel Jack Smith now has another obstacle to overcome thanks to an amicus brief that former Attorney General Edwin Meese III and law professors Steven Calabresi and Gary Lawson submitted.

The brief raised the question of the legality of the appointment of Jack Smith as Special Counsel, with the D.C. Circuit Court of Appeals now appearing to be willing to consider these "discrete issues" that were raised in the brief, with Smith's appointment at the top of that list.

Talking Points…

  • Was Smith's appointment legal?
  • The amicus brief
  • Analysis

Was Special Counsel Jack Smith's Appointment Legal?

According to 28 CFR § 600.3 - Qualifications of the Special Counsel:

"An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies.

"The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation."

Smith resigned his position at The Hague to take on this role, so he was not working for the government at the time, and his track record of being a former U.S. Attorney for Tennessee would clearly make him qualified. Unlike David Weiss, who was the U.S. Attorney for Delaware when he started his investigation into Hunter Biden, then later made to be the Special Counsel.

From that perspective, the appointment would appear to be legal, but that is being challenged.

The Amicus Brief

The brief was filed by American Oversight and written by the three individuals listed above. They claim that no constitutional provision allows Attorney General Merrick Garland to assign "a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel." They continue:

"Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor.

"Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé."

Per 28 CFR § 600.1 - Grounds for appointing a Special Counsel:

"The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted."

There are also two stipulations listed, being a possible conflict of interest with the DOJ and it being "in the public interest" to appoint outside counsel.

Analysis

I don't see how American Oversight can win this legal argument, especially considering the precedent of Trump's and previous administrations' use of special counsel appointments under these same guidelines.

This appears to be more of a delay tactic on Trump's behalf to derail the schedule of this trial rather than a brief that has any merit. Regardless of this appeals panel's makeup, American Oversight, I believe, will lose this ruling.

About Jerry McConway

Jerry McConway is an independent political author and investigator who lives in Dallas, Texas. He has spent years building a strong following of readers who know that he will write what he believes is true, even if it means criticizing politicians his followers support. His readers have come to expect his integrity.

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