Discovery is gonna be lit.
If you're looking for a detailed dive into why Jack Smith's appointment as Special Counsel by AG Merrick Garland was likely illegal, here's a good explainer:
On December 21, 2023, a very interesting “
Amicus” brief was filed with the United States Supreme Court in the matter of
United States v. Trump. The brief was filed in response to Special Counsel Jack Smith’s effort to convince the Court to take up the immunity issue raised by former President Trump rather have it decided first in the D.C. Circuit Court of Appeals. The brief was filed by former Attorney General Edwin Meese, and law professors Steven Calabresi and Gary Lawson from at Northwestern and Boston University Law Schools, respectively.
An ”Amicus” brief is one filed by persons who are not parties to the case, but have some particularized interest or specialty with regard to the subject matter that might aid the Supreme Court in coming to a decision. Roughly translated, they are referred to as “Friend of the Court” briefs.
What the Meese brief argues is that Special Counsel Jack Smith occupies an “office” that is not recognized by law and was created by Attorney General Merrick Garland in violation of the “Appointments Clause” of the Constitution. The specific details and case law involving the Appointments Clause is beyond the scope of this one article. But the foundation of Meese’s argument is that Smith was given law enforcement authorities by AG Garland that are equivalent to or greater than the authorities given to actual “Officers” of the United States – specifically U.S. Attorneys. But, unlike U.S. Attorneys who appointed by the President and confirmed by the Senate, Special Counsel Smith – a private citizen – was put in place by AG Garland pursuant to a regulation of the Department of Justice.
Regulations are not “laws”. They are internal operating provisions which for the most part direct how the government departments conduct their business. The departments are authorized to create regulations by Congress. But some regulations are wholly internal and do not create rights or obligations for members of the public.
Jack Smith was named as “Special Counsel” under a regulation adopted by the Department of Justice after the “Independent Counsel” statute passed by Congress was allowed to expire without being extended near the end of the Clinton Administration. Jack Smith’s position and authority were created by DOJ to solve an internal operating dilemma – how to conduct criminal investigations of a President or those close to him when the President is the source of the authority to conduct those investigations -- a “conflict of interest.”
DOJ solved this problem at the end of the Clinton Administration by adopting regulations that are set forth beginning at 28 CFR Sec. 600.1. That regulation reads:
more:
The Constitution Doesn't Allow The AG To Create Offices and Imbue Them With Powers Limited To "Officers" of the United States.
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