‘Stunning’ New Supreme Court Filing Seeks to Strip Special Counsel Jack Smith of ‘Illegal’ Authority

A new court filing might derail the Biden Administration’s efforts to politically prosecute former President Donald Trump ahead of the 2024 election.

Former Attorney General Ed Meese, Professor Gary Lawson, and Steven Calabresi have petitioned the Supreme Court for a writ of certiorari, arguing that private person Jack Smith was never properly appointed as Special Counsel. This would declare all of his legal acts null and void.

The two well known constitutional experts and former Reagan-era Attorney General have given a persuasive legal argument that only Congress can create offices subordinate to the Attorney General under U.S. regulations regulating the Department of Justice.

Because Smith was employed immediately by current Attorney General Merrick Garland, the proper constitutional procedure of nomination by the President and approval by the full United States Senate was never followed.

The trio claim in the language of their petition to the Supreme Court that Smith’s varied legal activities under color of law “can only be taken by persons properly appointed as federal officers to properly created federal offices.”

Neither Smith nor the post of Special Counsel that he purports to hold fits those requirements. And, whatever one thinks of the defendant or the behavior at issue in the underlying case, this is a serious test for the American rule of law.

Legal reporter Julie Kelly pointed out the “stunner” of a legal filing.

“Court filings coming fast and furious this week but this is a stunner,” she remarked. “Former AG Edwin Meese asks SCOTUS to deny Jack Smith’s petition to expedite appeal of immunity ruling, argues Merrick Garland broke the law by appointing a special counsel w/o statutory authority…”

“While noting other special counsels have been US Attorneys, Meese’s amici curiae petition (meaning doesn’t side with either party) underscores how Smith’s appointment is unlawful,” she added.

Thus, it appears that not only are the Biden Department of Justice’s political prosecutions of Donald Trump a blatant form of election interference, they also appear in some cases to be illegal.

Jack Smith, in a filing with the Supreme Court on Thursday, retorted to the amici brief.

Smith argued that there were virtually identical amici curiae filed during the Nixon era that held that the Special Counsel is a principal, rather than “inferior” office. That doesn’t mean that Smith is in the clear to do what he wishes with the presidential candidate, however.

The Supreme Court is now in the unenviable position of having to choose between enforcing the rule of law and ruling in favor of a presidential candidate who is deeply disliked within the Washington Swamp.

The nation’s highest court may indeed be choosing between its continued existence as an institution that enforces the constitution or one that merely rubber-stamps the various preferences of America’s would-be ruling class. The SCOTUS should issue its ruling wisely.

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By Melinda Davies
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