Was Jack Smith's appointment unconstitutional? He has no more authority than Taylor Swift, amicus brief argues  BY DEBRA CASSENS WEISS DECEMBER 21, 2023,

Jack Smith’s appointment as special counsel has been a subject of constitutional debate. According to an amicus brief signed by former U.S. Attorney General Edwin Meese and two law professors, Smith’s appointment was unconstitutional1. The argument centers around the process of appointing a special counsel, which typically involves the President or the Attorney General appointing an individual who is then confirmed by the Senate2. Here are the key points from the brief:

Improper Appointment: Attorney General Merrick Garland allegedly “exceeded his statutory and constitutional authority” when he appointed Smith in November 2022. Smith was not nominated by President Joe Biden or confirmed by the U.S. Senate, which raises concerns about the legitimacy of his appointment.

Null and Void Actions: Because Smith’s appointment was deemed unconstitutional, every action he has taken since his appointment is now considered null and void. This includes any legal proceedings related to immunity claims by former President Donald Trump1.

Nationwide Jurisdiction: Despite lacking proper appointment procedures, Smith has nationwide jurisdiction, making him more powerful than any of the 93 Senate-confirmed U.S. attorneys. Federal law allows the attorney general to appoint attorneys to assist U.S. attorneys, but not to replace them1.

Appointments Clause: The appointments clause in the Constitution requires that all federal offices “not otherwise provided for” be established by law. However, there is no statute establishing the Office of Special Counsel within the U.S. Department of Justice, nor is there a statute allowing the attorney general to appoint an inferior officer with the powers given to Smith. Additionally, inferior officers must be controlled by a superior officer, which does not apply to Smith under DOJ regulations1.

In summary, the constitutional validity of Jack Smith’s appointment remains a contentious issue, and legal challenges continue to question the legitimacy of his role as special counsel