During a House Judiciary hearing, Congressman Thomas Massie challenged the constitutionality of appointing Jack Smith as special counsel to oversee investigations into former President Donald Trump, citing the Appointments Clause and amicus briefs by former Attorney General Ed Meese.
During a House Judiciary hearing, Republican Congressman Thomas Massie pressed Attorney General Merrick Garland on the constitutionality of appointing Jack Smith as special counsel to oversee investigations into former President Donald Trump. Massie argued that Smith's appointment violated the Appointments Clause of the Constitution.
"What gives you the authority to appoint a special counsel to create…you've created an office in the U.S. government that does not exist without authorization from Congress," Massie asked Garland.
Massie cited amicus briefs filed by former Attorney General Ed Meese in cases brought by the DOJ against Trump, which argued that Garland's appointment of Smith, a private citizen, was unconstitutional. The briefs stated that Smith "is not clothed in the authority of the federal government" and has no more authority than "Bryce Harper, Taylor Swift, or Jeff Bezos."
Meese argued that Smith's appointment was "sufficient to sink Smith's petition," and that he should not be representing the United States in court.
Garland responded by stating that the Attorney General has regulations under which they can appoint Special Counsel, which have been in effect for 30 years. "The matter that you're talking about, about whether somebody can have an employee of the Justice Department serve as special counsel has been adjudicated," he said.
However, Meese's briefs argued that no statutes or constitutional provisions authorized the Attorney General to appoint a private citizen as Special Counsel.
Massie further argued that even if statutory authority existed, the Constitution requires a nomination by the President and confirmation by the Senate.
"You've created an office that would require an act of Congress, yet there's not an act of Congress that authorizes that," Massie said.
Garland's appointment of Smith has been controversial, with some arguing that he overstepped his authority. Smith is tasked with overseeing investigations into Trump's handling of classified documents and his role in the January 6 Capitol riot.
The constitutionality of Smith's appointment remains unclear and may be subject to legal challenges.
