Special counsel Jack Smith has again shot down claims that he lacks the legal authority to prosecute former President Donald Trump for alleged wrongful retention of classified documents, labeling the arguments as “meritless.”
According to Mr. Meese, “Smith does not have authority to prosecute this case” because this can only be done by a person “properly appointed as federal officers to properly created federal offices.”
Mr. Meese has submitted several amicus briefs in cases that Mr. Smith is prosecuting against President Trump, arguing that the “legality of Jack Smith’s appointment is a potentially fatal flaw in this entire prosecution, and as such must be resolved before this case proceeds to trial in the district court.”
The argument is based on the Constitution’s Appropriations Clause, which stipulates that only Congress can create a federal office, subject to presidential nomination and Senate confirmation. Mr. Meese says Mr. Garland “exceeded his legal authority” and violated the Appropriations Clause in appointing Mr. Smith to a newly created office. The statute that allows attorneys general to appoint officers, including outside counsel, “does not authorize creating any offices.”
“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria,” Mr. Meese said in the brief.
Arguments Have No Legal Basis, Smith Says
Mr. Smith characterized Mr. Meese’s arguments as “meritless” in a March 15 filing, claiming there is no precedent for “leapfrogging” a motion to resolve the legality of the special counsel position before this case proceeds to trial in the district court.“Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them, including authoritative decisions by the Supreme Court,” he said.
“Resolving the validity of the Special Counsel’s appointment would not lead to an accelerated appellate proceeding if Trump’s claim failed. Unlike with a non-frivolous immunity claim, Trump would have no right to an interlocutory appeal should the Court deny his Appointments Clause challenge.”
According to Mr. Smith, the argument that the role of special counsel is an officer under the Constitution that requires a presidential appointment and Senate confirmation “fails” as he is overseen and reports to officers of higher authority, specifically the attorney general, who maintains the authority to remove him from the role.
“Under governing authority, the Special Counsel is an inferior officer who may be appointed by the head of a department because he is subject to supervision and oversight by the Attorney General,” Mr. Smith said in the brief.
“That conclusion is confirmed by cases addressing prosecutors vested with authority comparable to the Special Counsel,” he added.
