Former Attorney General Ed Meese, Professor Gary Lawson, and constitutional scholar Steven Calabresi have taken legal action to challenge Special Counsel Jack Smith’s appointment, filing a writ of certiorari with the Supreme Court of the United States. They argue that Smith’s appointment by Attorney General Merrick Garland lacks constitutional legitimacy and that his role should be nullified.
The petition centers around the process for appointing a Special Counsel. According to the scholars, since only Congress can create roles subordinate to the Attorney General, the Constitution requires a Special Counsel to be appointed by the President and then confirmed by the Senate before assuming official duties. In their petition, they argue that “This Court should reject Mr. Smith’s request for certiorari before judgment for the simple reason that he lacks authority to ask for it. Nor does he have authority to conduct the underlying prosecution.”
They further contend that without Senate confirmation, Smith’s appointment did not meet constitutional standards, writing, “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 scholars claim that the alleged constitutional violation dates back to Smith’s appointment on November 18, 2022, when Garland appointed him to investigate efforts to interfere with the certification of the 2020 election. In their writ, they note that “none of those statutes, nor any other statutory or constitutional provisions, 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.”
In a strong statement questioning Smith’s authority, the petition states, “Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
The Supreme Court’s handling of this case could potentially clarify whether a Special Counsel can operate without Senate confirmation. The decision will have significant implications for the scope of the Attorney General’s power in appointing individuals to high-stakes investigative roles.
