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. //

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." //

Among the most compelling arguments made by the Meese brief comes at the end when it notes the incarnation of a Special Counsel vested with a Javert-like mission, as compared to the statutorily-created officers of the Justice Department – the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant AGs, and 94 U.S. Attorneys – all subject to Presidential appointment and Senate confirmation. According to the Biden DOJ, the Attorney General can simply create a Special Counsel Office, appoint a non-government actor to that post, grant him the power to wield the authority of a grand jury, draw resources from various federal law enforcement agencies, and direct their conduct, and seek search and arrest warrants when loosed upon a member of the public.

If the Meese brief’s argument is correct, then all the actions taken by Smith have been without lawful authority under federal law – beginning with the use of the grand jury in Washington D.C. to build the cases he has brought against former President Trump. The outcome would almost certainly mean that the cases would be dismissed.