Republican Congressman Thomas Massie, R-Ky., pressed Attorney General Merrick on the constitutionality of appointing Jack Smith as special counsel in a hearing Tuesday.
Garland testified before the House Judiciary Committee and was questioned by Massie on Smith's appointment to oversee the classified documents and January 6 probe into former President Donald Trump.
"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," Massie posed to Garland.
Massie referenced amicus briefs in the cases brought by the DOJ against Trump filed by former Attorney General Ed Meese under Ronald Reagan – in which he argues that the case that Garland's appointment of Smith — a private citizen — is in violation of the Appointments Clause of the Constitution.
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"Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," the brief states.
"Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos," they argued.
Meese argues that the "illegality" of Smith’s appointment is "sufficient to sink Smith’s petition, and the Court should deny review."
Meese and company noted in the brief that Smith was appointed "to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021."
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Garland responded to Massie that, "there are regulations under which the Attorney General appoint Special Counsel, they have been in effect for 30 years, maybe longer, under both parties. The matter that you're talking about, about whether somebody can have an employee of the Justice Department serve as special counsel has been adjudicated," he said.
Garland argued that special counsel appointments that he and other AGs, including Attorney General William Barr, have made cite a regulation that points to a statute.
Meese, however, in his briefs filed in several points in the Trump cases, argued that "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."
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"Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically 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 former AG wrote.
Meese's brief was even mentioned in a question by Justice Clarence Thomas in the Supreme Court oral arguments over Trump's presidential immunity – which the high court is expected to decide this month.
"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.
