On Thursday, April 25th the Supreme Court will hear oral argument in Trump v. United States. 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. Gene Schaerr filed the amicus brief, which grows out of a law review article that Gary Lawson and I published: Why Robert Mueller's Appointment as Special Counsel was Unlawful, 95 Notre Dame. Law Review 87 (2019). 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.
The absence of standing to defend the D.C. Circuit's opinion below on Smith's part cannot be waived by Donald Trump's or anyone else's failure to raise it sooner. And, the absence of defendant standing must be raised sua sponte by any federal judge or Supreme Court Justice who Jack Smith purports to appear before in any case whether the case involves Donald Trump or anyone else. Standing must exist at all stages of litigation including throughout all authorized appeals and habeas corpus petitions.
