President Reagan’s attorney general and two law professors who clerked for Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.
Former Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson said in a 25-page filing to the Supreme Court that Attorney General Merrick Garland had no constitutional or statuary authority to appoint Mr. Smith to conduct the high-level criminal investigation of Mr. Trump because he was a private citizen and not confirmed by the Senate.
Mr. Smith worked as a U.S. attorney but was living in the Netherlands at the time of his appointment in November 2022, according to reports.
The filing says a lawfully appointed special counsel would have had to be selected by the president, confirmed by the Senate and serve in the Justice Department. Lawful special counsel appointments in the past included Patrick Fitzgerald, a U.S. attorney for the Northern District of Illinois, Rod Rosenstein, John Huber and John Durham.
“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,” they wrote.
The legal filing was presented to the justices last month as the Supreme Court considered whether to fast-track Mr. Smith’s case and whether Mr. Trump has presidential immunity from criminal prosecution, as the former president’s legal team has argued. Mr. Smith is prosecuting Mr. Trump on felony charges related to his efforts to overturn the 2020 presidential election and a case involving the alleged mishandling of classified documents after Mr. Trump left office.
The justices declined to expedite the legal battle. The U.S. Circuit Court of Appeals for the District of Columbia heard oral arguments on Tuesday, and the question of Mr. Smith’s legal authority to bring charges against Mr. Trump was briefly discussed.
“One of the briefs indicated that Jack Smith is improperly appointed. Do you have a position there?” asked Judge J. Michelle Childs, a Biden appointee.
“I think it raises very powerful questions, but we have not raised it at this time,” said Trump attorney D. John Sauer.
The Trump defense team could raise the issue when the case is remanded to the trial court.
A Justice Department spokesperson declined to comment.
The reaction to the suggestion that Mr. Smith’s appointment was unlawful and would make the criminal charges against Mr. Trump moot has received mixed reactions from court watchers.
Elliot Mincberg, senior fellow at the liberal People for the American Way, said it doesn’t seem like a “credible argument.” He noted that other special counsels, including Robert Mueller, who led the alleged Russia collusion investigation, weren’t serving in the Justice Department at the time of their appointments.
Unlike Mr. Smith, Mr. Mueller did not bring charges against Mr. Trump.
Still, Mr. Mincberg said Mr. Smith has had the backing and approval of Mr. Garland.
“The indictment wasn’t approved by him alone. It was approved by the attorney general, so, to me, it’s one of the big weaknesses of the Meese argument,” he said.
Curt Levey, present of the Committee for Justice, said he thought the Meese amicus brief made a strong argument but the question is whether the Supreme Court would have the “courage” to rule that Mr. Smith was appointed unlawfully and toss the charges.
“If you take politics and publicity out of it, I think it is a winning argument,” he said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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