Tipsheet

Massie Questions Garland on Legality of Appointing Special Counsel Jack Smith

Leah Barkoukis
Leah Barkoukis  |  June 05, 2024 11:30 AM

During a House Judiciary Committee hearing on Tuesday, Rep. Thomas Massie (R-KY) questioned Attorney General Merrick Garland about his appointment of Jack Smith as special counsel to oversee investigations into Donald Trump. 

Massie began his line of questioning asking to submit into the record an amicus brief from former Attorney General Ed Meese and two law professors, as well as an article from The Heritage Foundation's Hans von Spakovsky, questioning the legality of appointing Smith.

... Meese, Calabresi, and Lawson argue that Garland lacked the power to appoint Smith because the attorney general has no authority to appoint a “private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”

First, they point out that there is no federal statute establishing an “Office of Special Counsel in DOJ.” Second, even if one ignores the absence of such a specific statute, there is also no statute authorizing the “Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel.”

The special counsel, they note, has more power that any of the 94 U.S. Attorneys who prosecute cases across the country. Their authority is limited to the jurisdictions in which they are appointed. Moreover, U.S. Attorneys are nominated by the president and have to be approved by the Senate under the Appointments Clause in Section 2 of Article II of the Constitution.

Yet Jack Smith has nationwide authority to pursue his prosecutions, and indeed has indicted Trump in two separate jurisdictions (D.C. and Florida), and was neither nominated by the president nor confirmed by the Senate. This, according to the amicus brief, violates basic constitutional requirements. (The Heritage Foundation)

Massie pressed the attorney general on whether Smith was nominated by President Biden or confirmed by the Senate. To both questions, Garland responded, "No, he was not."

“When was the special counsel statute passed?” Massie then asked. 

“There is no special counsel statute," Garland acknowledged. "There was an independent counsel statute that was expired." 

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"It seems like you've created an office that would require an act of Congress, yet there's not an act of Congress that authorizes that. And even if it didn't require an act of Congress, and you've already admitted that there was no act of Congress that established this office, it would still require, according to the Constitution, a nomination by the President and confirmation by the Senate," Massie said to Garland.