Legal Experts Back Trump’s Motion to Dismiss Case Due to Jack Smith’s ‘Unlawful Appointment’

(Left) Special counsel Jack Smith in Washington on Aug. 1, 2023. (Drew Angerer/Getty Images); (Right) Former President Donald Trump. David Dee Delgado/Getty Images

A handful of legal experts, including two former attorneys general, have filed a request to participate in an upcoming court hearing in support of former President Donald Trump’s motion to dismiss his classified documents case in Florida based on the alleged unlawful appointment of special counsel Jack Smith.

U.S. District Court Judge Aileen Cannon has set a June 21 date to hear arguments on President Trump’s Feb. 22 motion to dismiss the case based on the unlawful appointment argument, which is based on the idea that Attorney General Merrick Garland lacked authority to appoint Mr. Smith as special counsel overseeing the Trump prosecution.

In the case, President Trump has been accused of unlawfully retaining and mishandling sensitive government documents at his Mar-a-Lago home in Florida, which was the site of a controversial FBI raid to seize the records. The former president has pleaded not guilty and insists the case is politically motivated.

In a June 3 motion filed in a Florida district court, former U.S. attorneys general Edwin Meese II and Michael Mukasey, along with law professors Steven Calabresi and Gary Lawson, and public interest organizations Citizens United and Citizens United Foundation, asked the judge for permission to participate as amici curiae (or friends of the court) in oral arguments during the June 21 hearing in support of President Trump’s request to dismiss the case.

The legal experts contend that they have special expertise regarding the matter at hand, with Mr. Meese having served as U.S. attorney general during the time when independent counsels were authorized by statute.

“This Court would benefit from Attorney General Meese’s knowledge on Justice Department operations, legal authorities, and longstanding interpretations of the underlying relevant constitutional and statutory sources of the purported appointment authority at issue here,” the amici wrote in the filing.

Just like President Trump’s earlier motion to dismiss the case, the June 3 amici request to participate in oral argument cites the Appointments Clause of the U.S. Constitution.

‘Jack Smith Lacks the Authority to Prosecute This Action’

The Appointments Clause states that the president has the authority to appoint a number of officers that courts have come to deem “principal” or “superior” officers, whose appointments must be established by Congress through law, and have their appointments confirmed by the Senate. The clause also states that Congress can, through law, allow department heads to appoint “inferior officers.”

President Trump’s motion to dismiss the case cites the Appointments Clause and contends that Mr. Garland lacked the authority to appoint Mr. Smith as special counsel without Senate confirmation.

President Trump’s attorneys argued in that motion that Mr. Smith should be classified as an employee rather than an “officer” under the statutes cited by Mr. Garland in making his appointment, calling into question the legitimacy of Mr. Smith’s appointment.

“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” the motion reads. “As such, Jack Smith lacks the authority to prosecute this action.”

A similar argument was used by Messrs. Calabresi and Lawson in 2019 to argue in favor of a challenge to the appointment of Robert Mueller to the role of special counsel, whose investigation into allegations of Russian meddling in the 2016 election morphed in a broader investigation into alleged collusion between the Trump campaign and Russian agents to influence that election. Mr. Mueller’s report found insufficient evidence to conclude that any such collusion had taken place. A federal appeals court unanimously rejected a legal challenge to Mr. Mueller’s appointment, concluding that he was an “inferior officer” that did not require Senate confirmation.

Mr. Smith has opposed the line of reasoning laid out by Trump counsel challenging his appointment.

Smith Fires Back

Mr. Smith and his legal team argued in a March 7 response to President Trump’s motion to dismiss that the attorney general has statutory authority to appoint a special counsel because the Appointments Clause permits department heads to appoint “inferior officers,” and Congress “has also provided for the Attorney General to ‘appoint officials ... to detect and prosecute crimes against the United States.’”

“Congress has also authorized the Attorney General to commission attorneys ’specially retained under authority of the Department of Justice‘ as ’special assistant[s] to the Attorney General or special attorney[s]’ and provided that ‘any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal . . . which United States attorneys are authorized by law to conduct,’” they wrote.

Mr. Smith and his team also pointed to the Justice Department’s set of regulations governing the appointment of special counsel as statutory authority.

Specifically, they noted that the Attorney General issued a regulation providing an “internal framework for certain special-counsel appointments,” and that this Special Counsel regulation replaced the Independent Counsel regime formerly provided for in Title IV of the Ethics in Government Act.

Mr. Smith argued that the Special Counsel regulation provides for a “wholly Executive Branch procedure for appointing a special counsel, who exercises discretion ‘within the context of established procedures of the Department.’”

Supreme Court’s ‘Keen Interest’

When President Trump appealed his presidential immunity defense to the U.S. Supreme Court, Mr. Meese submitted an amicus brief challenging Mr. Smith’s appointment on grounds of the Appointments Clause.

Mr. Meese argued that the statute cited by Mr. Garland to appoint the special counsel (and referred to in Mr. Smith’s filing) has not even “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief stated. “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”

When the Supreme Court heard arguments on President Trump’s presidential immunity defense in April, Justice Clarence Thomas brought up the question of the special counsel’s appointment.

Justice Thomas asked John Sauer, the attorney who represented President Trump in court, whether he had challenged the appointment of the special counsel in the current litigation.

Mr. Sauer replied that Trump attorneys had not raised such concerns directly in the current case before the Supreme Court, but he noted that the matter of the special counsel’s appointment is “very important” and “runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or confirmed by the Senate at any time.”

The Trump attorney also confirmed that Mr. Smith’s appointment was being challenged in the former president’s classified documents case in the Southern District of Florida.

In their June 3 motion to participate in the oral arguments in the Trump classified documents case, Mr. Meese and the others said that there is “good reason” to believe that the Supreme Court will take a “keen interest” in how the Florida court resolves the challenge.