Former President Donald Trump shared an article on Truth Social that claims special counsel Jack Smith lacks the standing to defend the Washington, D.C., Circuit Court ruling on presidential immunity before the Supreme Court.
The high court is set to hear in arguments in the case Thursday.
Steven Calabresi, professor at Northwestern Pritzker School of Law, claimed in an article for Reason that Smith's appointment as special counsel is unconstitutional.
"I have signed an amicus brief in this case, along with former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, and with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland," he said in the article.
"We claim that because Jack Smith was unconstitutionally appointed, he therefore lacks standing to defend the order of the D.C. Circuit denying Donald Trump's claim of inherent presidential immunity from criminal prosecution for acts taken while serving as President.
"Smith can no more defend the lower court order than can any random person picked off the street. Jack Smith is in the eyes of the law a private citizen, and all the acts he has taken since his appointment on November 18, 2022 are null and void.
"This is as true of the acts Smith has taken in the Florida classified documents case, against Donald Trump, under the eye of the 11th Circuit, as it is of the actions Smith has taken in the D.C. District Court case, against Trump involving the events of January 6, 2021.
"All those he has imprisoned or entered into plea bargains with are free. Indeed, Jack Smith can be sued in torts for unconstitutionally depriving people of liberty and property. We argue that under the Constitution only Congress can create the Office of Special Counsel to which Jack Smith was appointed. The power to create federal offices is an exclusively congressional power and may not be usurped by the executive branch. Congress, however, may by a clear law, vest in the Head of a Cabinet Department the power to create inferior offices and officers."
Calabresi noted that "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.
"Here, Special Counsel Jack Smith is an Emperor who wears no clothes," Calabresi said.
Jeffrey Rodack ✉
Jeffrey Rodack, who has nearly a half century in news as a senior editor and city editor for national and local publications, has covered politics for Newsmax for nearly seven years.
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