Republican Congressman Thomas Massie pressed Attorney General Merrick Garland on Tuesday regarding the constitutionality of appointing Jack Smith as special counsel.
The inquiry occurred during a House Judiciary Committee hearing and focused on whether the Attorney General has the authority to appoint a private citizen as special counsel without Congressional approval.
Fox News reported that during the hearing, Massie questioned Garland about Smith's role in overseeing the classified documents and January 6 probes involving former President Donald Trump. The line of questioning revolved around whether Garland had the constitutional authority to appoint Smith, a private citizen, to the role of special counsel.
Massie referenced amicus briefs filed by former Attorney General Ed Meese. These briefs argue that Garland's appointment of Smith violates the Appointments Clause of the Constitution.
Meese's brief characterizes Smith as a "modern example of the naked emperor," emphasizing that Smith, not being an official federal employee, lacks the authority to represent the U.S. government.
The brief further contends that Smith has no more legal authority than well-known public figures such as Bryce Harper, Taylor Swift, or Jeff Bezos. Meese argued that the alleged "illegality" of Smith's appointment should be sufficient grounds to deny his petition.
Smith was appointed to investigate potential law violations related to attempts to interfere with the lawful transfer of power following the 2020 presidential election and the certification of the Electoral College vote on January 6, 2021.
Garland defended the appointment, citing long-standing regulations that allow the Attorney General to appoint special counsel, a practice he noted has been in effect for over 30 years under administrations from both parties.
Garland explained that the issue of having a Justice Department employee serve as special counsel has been previously adjudicated. He mentioned that special counsel appointments, including those he made and those made by former AG William Barr, are supported by a regulation linked to a statute.
However, Meese's briefs argue that no statutes explicitly authorize the Attorney General to appoint a private citizen as special counsel. Meese highlighted that no law specifically allows the Attorney General, rather than the President with Senate approval, to make such an appointment.
Massie pressed Garland with pointed questions, including, "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." Garland reiterated that existing regulations support his authority to make such appointments.
Meese's brief underscored the point by stating, "None of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel."
The debate over the appointment of special counsel continues to raise significant constitutional questions. Garland's defense relies on historical precedent and existing regulations, while Meese and Massie argue that these appointments overstep constitutional boundaries by granting excessive power without appropriate oversight.
This hearing sheds light on the broader issue of the balance of power between the executive branch and Congress. It highlights the importance of clear statutory authority in the appointment of individuals to powerful positions within the federal government.
In conclusion, the questioning by Congressman Massie and the arguments presented by former Attorney General Meese highlight a critical constitutional debate over the authority of the Attorney General to appoint private citizens as special counsel.
Garland's defense of Smith's appointment relies on longstanding regulations and historical precedent, while critics argue that such appointments require explicit Congressional authorization. The outcome of this debate could have significant implications for the separation of powers and the appointment process within the federal government.
