By
G. McConway
|
January 3, 2024

Appeals Court May Consider Argument to Remove Jack Smith as Special Counsel

You are going to see an awful lot about the possible removal of Jack Smith as Special Counsel over the next few weeks.

This is all part of an amicus brief that was presented by American Oversight, written by former Attorney General Edwin Meese III, and law professors Steven Calabresi and Gary Lawson.

They are claiming that constitutionally, the Department of Justice does not have the authority to appoint a private citizen with “extraordinary criminal law enforcement power under the title of Special Counsel.”

The Argument

The brief claims, “Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor.

“Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé.”

That all sounds great, but, and this is not going to be a popular opinion, they are going to lose this legal battle if it goes before the court.

28 CFR § 600.1 - Grounds for appointing a Special Counsel specifically grants the power to the Attorney General or Acting Attorney General to “appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.”

28 CFR § 600.3 - Qualifications of the Special Counsel specifically mandates that the Special Counsel be from outside the employ of the government, which Smith was at the time, and that the appointee be qualified.

Smith is a former U.S. Attorney for Tennessee, so that would pretty much kill any argument against him not being qualified for the position.

Furthermore, their argument would go against precedent dating back to 1875, when John B. Henderson, was appointed by Ulysses Grant right up to former Attorney General William Barr appointing John Durham as Special Counsel to investigate the Russian collusion investigation into Donald Trump.

Meese, Calabresi, and Lawson are going to lose the argument to have Jack Smith removed. They may win other aspects of their argument regarding court jurisdiction, but they have zero chance of having Smith removed from this case.

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