The Supreme Court is hearing Donald Trump’s appeal over claims of presidential immunity from prosecution today, April 25. The former president, however, has another iron in the fire that might trump the Biden/Democrat lawfare effort against him. It’s a bid to disqualify Jack Smith’s appeal on the theory that the special counsel has no legal right to mount it. While not widely reported, the theory is supported by some mainstream legal heavyweights, including a former US attorney general. Court watchers will be on the lookout for any Justice to address this at oral arguments in Trump v. United States.
Reagan’s AG: Jack Smith Immunity Prosecution Unconstitutional
Edwin Meese,* who served as attorney general under Ronald Reagan, filed an amicus brief in the Trump case. Amicus – or “friend of the court” – briefs aim to provide compelling arguments, hoping that one or more justices will adopt the same position. Along with distinguished law professors Steven G. Calabresi and Gary Lawson, Meese argues that special counsel Jack Smith cannot legally engage in appellate representation under the US Constitution:
“Those actions can be taken only by persons properly appointed as federal officers to properly create federal offices. Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law — whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
The attorney general and the 94 US attorney positions are federal offices. There are currently 93 US attorneys serving, all of whom were nominated to their positions by the president and confirmed by the US Senate. Not prosecutor Smith, however. Neither you nor I could file an appeal on behalf of the United States – so why can Smith? Meese and his colleagues write, “without legally holding any office, Smith cannot wield the authority of the United States, including his present attempt to prosecute the former President.” It is, they claim, a violation of the Constitution’s Appointments Clause: Article 2, Section 2, gives the president express powers to nominate and appoint with Senate approval “all other Officers of the United States.”
Not an Officer of the United States
While US attorneys are part of the Department of Justice (DOJ), their creation predates that agency by many years. As the DOJ’s website explains, the Judiciary Act of 1789 provided for the appointment in each federal judicial district a “person learned in the law to act as an attorney for the United States.” This person, the United States attorney, was “to prosecute in [each] district all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned.”
A major appeal for this argument is that any justice who finds Smith’s lawful power lacking would not need to decide on presidential immunity. Dispensing with cases other than weighing in on the merits or answering the questions presented is a favored way justices deal with thorny issues. The Supreme Court often avoids making controversial rulings by skirting them entirely. Even some justices from the Court’s liberal bloc may find that attractive, despite the benefit to Trump.
* Edwin Meese currently serves on the board of the nonprofit that publishes Liberty Nation.
