Leftist judges usually write horrible opinions that are filled with bazillions of case citations and facts, most of which are, at best, marginally relevant. They do this to hide that the conclusions are intellectually and factually bankrupt. Rule of thumb in the law: The clearer an argument, the stronger the position. That’s true for any legal argument, as is demonstrated by the amicus brief that former U.S. Attorney General Edwin Meese and two law professors filed before the Supreme Court. It argues with exquisite clarity that Jack Smith’s appointment as Special Prosecutor was unconstitutional, which would void everything he’s done.
Meese, Steven G. Calabresi, and Gary S. Lawson state their question very simply:
Whether private citizen Jack Smith lacks authority to represent the United States, which jurisdictional requirement must exist at all stages of litigation, and which cannot be waived, in filing his Petition for a Writ of Certiorari in this Court?
The answer is as simple as the question: No.
The operative facts are simple. Despite having a whole host of Assistant U.S. Attorneys available to him, when it came to investigating the allegations swirling around January 6, Merrick Garland appointed someone who is not a U.S. Attorney but is, instead, a private citizen to investigate the matter (and, naturally, to bring preordained charges). Jack Smith has been zealous in this regard.
To justify the appointment, Garland did what leftists always do, which is to cite myriad authorities, all of which create the impression that the law was at his back. In his case, he referred to 28 U.S.C. sections 509, 510, 515, and 533. Surely, with so much statutory authority, everything must be ship-shaped and totally legal.
Except that the amicus brief argues compellingly that the statutes cannot create a right where none exists under the Constitution. Here’s the argument:
Under Art. II, sec. 2, cl. 2 of the Constitution, if the Constitution does not specifically establish a federal office, then Congress must do so. To date, Congress has not created an Office of Special Counsel within the DOJ. That means that any person appointed to “specially investigate” someone must already have a constitutionally or legally created position within the government. Smith did not.
Second, under the same constitutional provision cited above, when it comes to appointing inferior officers to specific positions, the department heads can act only if Congress authorizes them to do so. If they act otherwise, they are usurping a power that the Constitution reserves only for the President under what’s known as the Appointments Clause. Garland was not so authorized.
Third, if the Special Counsel is indeed a valid government officer, then he is functioning as a superior (or principal) officer. Thus, unlike ordinary Assistant U.S. Attorneys, who report to the Attorney General, he doesn’t report to anyone at all. Principal officers can only be appointed by the President acting with Senate confirmation. Biden did not appoint Smith.
None of the above means that there cannot be people who act as Special Counsels. However, both the Constitution and statutory law require that those Special Counsels be drawn from the pool of existing United States Attorneys who have been properly appointed to their roles within the Department of Justice. As the amicus brief says,
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.” That is what happened on November 18, 2022. That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current attempt to obtain a ruling from this Court.
That’s it. That’s the whole, crystal clear, uncomplicated constitutional argument: Jack Smith is functioning outside of any constitutional authority, making all his actions illegitimate. When someone is acting without authority, those illegitimate actions must be wiped from the slate. Everything Smith did is equivalent to the criminal law concept governing the results of illegal searches and seizures: They are the fruits of the poisonous tree and cannot be relied upon in a court of law.
Right now, sane minds on the Supreme Court must be very worried about the ongoing attacks against Trump. Just today, the Court refused to rule on Jack Smith’s request that it make an expedited ruling on Trump’s claim that he is immune to federal prosecution because all of his allegedly wrongful actions were taken while serving as President and, therefore, he was functioning in an official capacity (one granted him by the voters) that is beyond legal rebuke.
The amicus brief offers a way out for the Court by saying that everything Jack Smith did is illegitimate and must be voided. Consider, too, that the Court has accepted an appeal from a January 6 defendant arguing that all the obstruction charges that the DOJ brought against every defendant are invalid.
A wise Court will understand two things: One, that the lawfare we’re witnessing now is a continuation of the left’s fraudulent and often illegal efforts since November 2016 to keep Trump from the White House.
Leftists are long-term thinkers. When you consider the “insurrection” argument being made now, you’ll realize that it was no coincidence that, on January 6, while events were still unfolding, the media were already referring to them as an “insurrection.” Add in the evidence that Nancy Pelosi refused more security for January 6 and other indications that the government was contributing to, not stopping, some of the crazier actions on that day, and you begin to smell a set-up.
Two, given that 75 million people voted for Trump, and tens of millions support him today, prosecuting and persecuting him on the shakiest of legal grounds, using an activist who has no constitutional standing to act, is begging for bad things to happen in America.
If we have any sense at all, we don’t want bad things to happen. We want the rule of law, and that begins with a Supreme Court recognizing that Democrats are abusing the law to achieve political power.