By Shipwreckedcrew
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 than have it decided first in the D.C. Circuit Court of Appeals. The brief was filed by former U.S. Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson from 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 are beyond the scope of this one article, but the foundation of Meese’s argument is that Smith was given law enforcement authorities by Attorney General Garland that are equivalent to or greater than the authorities given to actual “Officers” of the United States – specifically U.S. Attorneys. However, unlike U.S. Attorneys who were appointed by the president and confirmed by the Senate, Special Counsel Smith – a private citizen – was put in place by Garland pursuant to a regulation of the Department of Justice.
Regulations are not “laws.” They are internal operating provisions that, 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:
§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—
(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
The Meese brief does not take issue with this regulation. Rather, the Meese brief addresses the question of the universe of individuals who can be lawfully appointed to the position of “Special Counsel” in order for this regulation to fit under federal statutes and the Constitution’s Appointment Clause.
Meese states that the appointments of Patrick Fitzgerald, John Huber, and John Durham as past “Special Counsels” were all valid because, at the time of their appointment, each was serving as a Senate-confirmed United States Attorney within the Department of Justice. Their appointment as “Special Counsel” did not alter their authority; it just granted them the same authority over a particular investigation pursuant to the regulation that they otherwise would not have under their individual geographic limitations.
Meese and his co-authors first published the objection set forth in the current brief in law journals and other publications following Robert Mueller’s appointment as Special Counsel, given that he was an attorney in private practice at the time he was named Special Counsel to investigate former President Trump, but never to a court.
Now, Meese and his co-authors are making the claim against Jack Smith to a court because of his effort to have the Supreme Court take up the immunity issue. This created an opportunity for them to raise the question by arguing that Smith lacks jurisdiction to seek the Court’s relief because he is not truly an “Officer” of the United States.
Congress alone has the authority to create federal offices not established by the Constitution. And the Attorney General cannot ex nihilo fashion offices as he sees fit. Nor has Congress given the Attorney General power to appoint a Special Counsel of this nature. Thus, without legal office, Smith cannot wield the authority of the United States, including his present attempt to seek relief in this Court.
The Meese brief notes that Attorney General Garland based his appointment of Smith on the language of 28 U.S.C. Sec. 515 – among other statutes – and that statute does concern the appointment by the Attorney General of “Special Attorneys.” The pertinent part of that statute reads:
(a) The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings … which United States attorneys are authorized by law to conduct…
The Meese brief points out that while this authority to appoint “special counsels” may exist in a statute passed by Congress, that authority is nonetheless limited by provisions of the Constitution as to the individuals eligible for such appointment given the nature of the powers being conferred. Because Jack Smith was a private citizen when appointed, never having been nominated by a president or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by Garland to exercise prosecutorial authority equivalent to United States Attorneys. Any action purporting to create such a position – or “office” — and vest it with the same authority as United States Attorneys is unconstitutional because it was not “created by law.”
At the risk of doing great violence to the constitutional analysis set forth in the Meese brief, the following is a paraphrase of the argument advanced:
The Appointments Clause provides for the appointment of officers “which shall be established by Law.” “Officers” are – obviously – appointed to “Offices,” and the “Office of the President” is the only office created by the Constitution. Congress creates all other “offices” of the Executive Branch by statute, hence the “established by law” language.
The power to create these offices and vest them with lawful authority is part of the “Necessary and Proper” clause to carry into execution the powers conferred on the Executive. “Established by law” has been interpreted to mean not by regulation or Executive Order, as only Congress passes laws. Congress has the exclusive constitutional authority to create federal offices. The Constitution does not give the president nor the heads of Executive Branch departments the power to create offices to which individuals may be appointed.
The Department of Justice and the Office of the Attorney General were both created by Acts of Congress and vested with the prosecutorial function of the Executive Branch. The DOJ was created by Congress with several “offices” – Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant Attorneys General, a U.S. Attorney for each federal judicial district, and the heads of the various law enforcement agencies created. These are all considered officers of the Executive Branch, and the individuals picked to lead them are subject to the Appointment Clause.
In other words, he doesn’t “have standing”. Wouldn’t it be great use that against the Democrats when so many valid election fraud cases were thrown out before any of the evidence was heard on the same grounds? Yes… yes, it would.
No doubt this could be the case. Democrats never let rules, regulations, laws or the Constitution get in the way of their persecutions. Remember how Pelosi just shit all over her own rules to assure that no one but venomous Trump haters were on her phony-ass committee to “investigate” January 6th.
jack shit has been unconstitutional since his appointment. President Trump should move to have him removed posthaste.
There is enough evidence for an honest court to find guilt on a charge of conspiracy to defraud the people of the USA.
If he is found not authorized he should pay for Trumps Defense costs, like Stormy.
Trump should be refunded in full with interest.
Trump should be hanged—rather than Mike Pence, who kept his oath to defend the Constitution.
You are full of shit.
How is he full of shit? Pence did the thing he was legally required to do.
Trump is running for President, and—what?—nobody’s supposed to talk about him? How does that make any sense?
You might try telling the truth for a change.
That wasn’t TrumpWon’s complaint. The complaint referred to talking about him.
But when you leftists are talking, you are lying.
Democrats pissed on the Constitution with their election fraud.
The Antifa and FED led chants aside, It isnt Pence that needs to be hanged, the creators of the Russian Hoax, ya maybe after a fair trial.
Democrats are not big on, nor do they show much interest in, paperwork, rules, regulations, laws and the Constitution. Jack Smith was the biggest scumbag liar fascist they could find so they shoehorned him into the position. It doesn’t matter that he has a corrupt past or doesn’t qualify; he will break every rule and violate due process whenever necessary to try and take down Trump, once and for all.
If a drug dealer isn’t given all his rights and treated like a VIP, a judge will drop charges and set him free. But when Democrats are targeting a political opponent, rules, rights, regulations, laws, due process or the Constitution have no place or bearing.
If it turns out the appointment of Jack Smith was done incorrectly, according to law, all that he’s done gets thrown out.
Trump asks appeals court to throw out 2020 election subversion charges
smith is illegitimate.
Yeah, since the election was subverted by Democrat election fraud.
Seriously, the man is unhinged. He CANNOT be entrusted with the power of the presidency. Trump’s Truth Social Christmas message:
Damn it took your TV a long time to report this, we saw it hours and hours ago, meh dont care what you think of his SM posting.
I know you don’t care. If you cared about Trump’s worsening mental derangement you wouldn’t still be supporting him.
You should worry more of your own worsening mental derangement lil war mongering goosestepper.
jack shit is illegitimate. Everything he has charged President Trump with should be dismissed with prejudice.
He was improperly appointed and in his capacity is a not an officer of the court.
Just listen to yourselves.
Yeah, listen to you guys, talking about laws, due process, the Constitution and shit. Shame on you all. We live in a fascist dictatorship where the situation determines the law.
No you listen to yourself no one is above the law, Jack shit appointment seems to ignore the law.
His appointment is now in question and his actions heretofore are unconstitutional.
Correction: Ed Meese says that the appointment is now in question. Ed Meese has no power in this situation, so nothing has really changed.
Yeah… Ed Meese says it is, has put together a case containing evidence and data and is presenting it to the Supreme Court. I’m not sure I see what your big butt-hurt problem is?
It would appear a 5th grade teacher would not have needed to learn or for that matter know and understand what an amicus brief is.
Please explain, then.
You need it explained thats what we knew.
That’s what I thought.
You win, I guess…(?)
Just take a while for the mockingbird media to write the script for every station to repeat verbatim. Then Greggie pipes up on cue.
I don’t know… looks pretty to the point to anyone experiencing reality.
Yup on point, you’ve seen Bidens “got aways” carrying in rifles photos too?
Word salad.
Salad can be healthy.
All you can eat salad mmmmmmmmmmmmmm
I may have discovered a means to immunize posts against down votes.
Or not
It works for those who realize it’s impossible to know which part of the post is upvoted or downvoted. Its secondary function is taking a count of those who don’t.
AI will be able to gather all sorts of data from people who don’t realize they’re revealing it. I imagine intelligent software will soon be filtering social media sites like invisible whales straining the sea for krill. Assuming that they aren’t already.
Weird, how AI is being crash-developed by private corporations.
Is that important? Why don’t you just dump a bunch of your own votes on it, like the Democrats do. Maybe we can have voting by mail, without signatures or verification.
How States Verify Voted Absentee/Mail Ballots (The requirements for all 50, plus DC)
If you know it or not your post on AI is the begining of recoginition of what our government has been doing since the “Patriot Act”, its used for Market manipulation. You love that shit, agenda 2030 total control, digital currency, limited travel. You wanted everyone to be double masked force injected with an experimental and toxic gene therapy because you were going to die from the seasonal flu, which was patented. (lab developed)
Its the truth tellers like Snowden that have to run for their lives, are imprisoned like Assange, or murdered like Seth Rich.
The AI arms race is being conducted by private corporations, outside any government regulation and control.
At least we have Kamala overseeing our AI development.
In 2020, numerous states violated their own constitutions to allow for unregulated voting by mail. It was a system designed for fraud.
https://twitter.com/15poundstogo/status/1742264264616730966
Bigly and Yuge. jack shit is illegitimate. He was never properly confirmed by the senate as an officer if the court. Ed Meese’s amicus brief is all the USSC needs to rule him illegitimate and all of his charges null and void.
Only a dictator would sidestep the responsibilities of the Senate to appoint , in this case, a special counsel that would otherwise not get confirmation because he is nothing more than a hatchet man.