Ensuring Due Process: The Supreme Court’s Obligation to Hear Jack Smith’s Brief on His Appointment

As readers of this blog know, I think Special Counsel Jack Smith was unconstitutionally appointed and that he lacks standing to petition the Supreme Court for certiorari before judgment.  But what if four justices disagree and vote to grant certiorari?  In that case, I think the Supreme Court should ask Special Counsel Smith to brief the question of whether he has standing and whether his appointment was constitutional?

Could an Attorney General appointed by President Trump appoint, as inferior officers, shadow U.S. Attorneys in Cook County, Illinois, or in New York State thus circumventing the requirement of Senate confirmation in two States which have two Democratic Senators?

Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are “vermin”?

The Supreme Court needs to know what the Biden Administration’s position is on such question.  Moreover, it needs to know if Jack Smith’s appointment is constitutional what limits, if any, there are on the Attorney General’s power to circumvent Senate confirmation. As former Attorney General Ed Meese, Professor Gary Lawson, and I all argue in our amicus brief, we do not think that the Attorney General has any power at all to appoint inferior officers as powerful as is Jack Smith.