The Supreme Court will be weighing in on Donald Trump’s presidential immunity case on Thursday, and ahead of the oral arguments, Trump shared an article to Truth Social that accuses special counsel Jack Smith of lacking standing to defend the D.C. Circuit’s ruling.
The article written by Steven Calabresi argues that special counsel Jack Smith was unconditionally appointed by Attorney General Merrick Garland since it was done without the approval of Congress. Calabresi argues that Smith being a private citizen means he “can no more defend the lower court order than can any random person picked off the street.”
Essentially, Calabresi says all actions Smith has taken since his appointment on Nov. 18, 2022, are null and void. This includes actions taken by Smith in the Florida classified documents case against Trump while under the jurisdiction of the 11th Circuit and the charges against Trump involving the Jan. 6, 2021, riot.
“Federal prosecutions of former President Donald Trump must be done in a constitutional way no matter how much he is hated for his actions of January 6, 2021 or for any other reason,” Calabresi wrote. “Here, Special Counsel Jack Smith is an Emperor who wears no clothes.”
The power to create federal offices belongs to Congress, not the executive branch. The Senate is given the power to appoint a U.S. attorney to have “nationwide jurisdiction to prosecute high level wrongdoing.” This included when the attorney general “properly appointed the U.S. Attorney David Weiss of Delaware to be Special Counsel for the prosecution of Hunter Biden, allowing Weiss to file charges anywhere in the U.S. and not only in Delaware.”
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“Congress has never given the Attorney General the power to turn private persons, like Jack Smith, neither nominated by the President nor confirmed by the Senate into ‘Special Counsels’ with more power than Senate-confirmed U.S. Attorneys to prosecute the enemies of the President or the Attorney General,” Calabresi said.
Calabresi argues that Smith could be “sued in torts for unconstitutionally depriving people of liberty and property.”
