Jack Smith's special counsel status is unconstitutional, former attorney general tells SCOTUS

One of the legal experts who joined the former attorney general previously wrote an op-ed in The New York Times calling for Trump to be convicted in the Senate after Jan. 6.

By Madeleine Hubbard

Published: December 21, 2023 11:47am

Former U.S. Attorney General Edwin Meese and top constitutional law scholars are asking the Supreme Court to reject special counsel Jack Smith's petition in the case against former President Donald Trump because they say Smith's appointment as special counsel is unconstitutional to begin with.

In a voluntary brief filed Wednesday in support of neither Trump nor Smith, the legal experts asked the Supreme Court to dismiss Smith's request for the high court to rule on whether former President Donald Trump had immunity from prosecution on charges that he allegedly worked to overturn the 2020 election.

Smith lacked the authority to ask the Supreme Court to rule on the case, according to the 32-page brief written by Meese, Boston University Associate Law School Dean Gary Lawson and Northwestern University Law School Professor Steven Calabresi.

Notably, Calabresi, a Republican who served as Meese's assistant in the Reagan administration, has been critical of Trump before. Calabresi wrote an op-ed for The New York Times days after the Jan. 6, 2021, Capitol riot calling for the Senate to convict Trump for what he said was "inciting a violent insurrection" and "pressuring Georgia’s secretary of state to 'find' enough votes for him to overturn the legitimate election result there."

Calabresi separately wrote in the outlet Reason on Wednesday that the attorney general can appoint a "Special Counsel to assist a U.S. Attorney but not to replace him," (emphasis original).

Smith has nationwide jurisdiction, which makes him more powerful than any of the 93 Senate-confirmed U.S. attorneys, per Calabresi.

"Unlike a U.S. Attorney, however, private citizen Jack Smith has not been nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds," he wrote.

"Jack Smith's appointment to be Special Counsel was unconstitutional, and every action that he has taken since his appointment is now null and void."

Trump's legal team similarly filed a brief against Smith's Supreme Court request on Wednesday by asking the high court to refrain from ruling on the case until a lower court hears the appeal.

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