Multiple state attorneys general have requested the 11th Circuit Court of Appeals to affirm a federal court dismissal of an indictment brought by Special Counsel Jack Smith against President-elect Donald Trump.
Florida led a multi-state brief; Texas filed its own.
U.S. Attorney General Merrick Garland in November 2022 appointed Smith to serve as “special counsel” for the U.S. Department of Justice. Garland also gave him “the full power and independent authority to exercise [the] functions of any United States Attorney” to investigate and prosecute Trump, the AGs note.
In one case, Smith charged Trump with mishandling classified documents in Florida, which a federal district judge dismissed. Smith appealed the case, which is before the 11th Circuit Court of Appeals.
The attorneys general argue Garland’s and Smith’s actions were illegal.
Florida Attorney General Ashley Moody led a multistate coalition urging the 11th Circuit to affirm the dismissal of Smith’s indictment, arguing his actions “are invalid due to regulations that violate Article II of the U.S. Constitution.”
Smith used his authority “to take the unprecedented step of indicting a former President and the principal political rival of the current ruling regime,” their brief states. “But unlike a U.S. Attorney, Smith faces next-to-zero presidential accountability. He was not appointed by the President and confirmed by the Senate. Nor is he subject to the plenary supervision of an official who was.” The coalition points out that “Congress has neither authorized nor funded the Attorney General’s unilateral consolidation of such power in a single unaccountable official.”
Moody said the coalition’s action was necessary even after the case was dismissed because of “the Biden-Harris machine’s persistent attempts to prosecute their political rival” and to ensure “that those responsible remain democratically accountable to the states’ citizens and in checking unprecedented abuses of executive power.”
The court should dismiss the indictment, they argue, because “Smith acted under regulations that authorize the exercise of core executive power unguided by the plenary control of the President or any principal officer accountable to him. Because those regulations violate Article II of the Constitution, Smith’s actions under them are invalid.”
They also took aim at Garland saying he appointed Smith in order “to remove responsibility – and thus political accountability – for the investigations and prosecutions under his purview from the current Administration. The Attorney General appointed Special Counsel Smith after President Trump announced his candidacy for the 2024 election because the Attorney General considered it ‘in the public interest’ for someone ‘independent’ of the Administration to head these criminal proceedings.
“The result: A single executive officer now unilaterally resolves massively consequential, politically fraught issues like whether to indict a former president and current presidential candidate and what position the United States will take as to whether and to what extent a President enjoys immunity from criminal prosecution. Article II does not give the Attorney General the authority to vest the executive power in Jack Smith … The district court’s dismissal of the indictment should be affirmed.”
Joining Moody are the attorneys general representing Kentucky, Iowa, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
Texas Attorney General Ken Paxton filed a separate amicus brief also arguing Smith “was illegally appointed” by Garland.
The brief argues the case directly implicates “states’ fundamental interest in preventing unlawful federal action because the U.S. Department of Justice claims that the U.S. Attorney General – acting without any statutory guidance from Congress – may empower a private individual to spend tens of millions of dollars to enforce federal criminal laws. This is a question that directly impacts the States and every citizen in them.”
Texas argues a U.S. attorney general “cannot empower a private person to exercise such awesome authority” because of the principal of constitutional avoidance. “The Constitution requires Congress to provide meaningful guidance when empowering federal agencies to choose between two available enforcement paths yet, here, the statutes DOJ cites provide no guidance at all,” the brief states.
Garland appointing Smith “was blatantly unconstitutional,” said Paxton, who has filed 101 lawsuits against the administration, including asking a court to require Smith not to destroy documents related to his investigation and prosecution of Trump. The DOJ, “without any authority, spent more than $30 million to hire a private individual to harass the former President by weaponizing partisan lawfare against him. This erodes the rule of law that distinguishes the United States from third-world, totalitarian regimes,” he said.
It was “extraordinary to suppose that Congress empowered the Attorney General to appoint a private attorney to lead (rather than simply assist) a significant multi-district investigation and prosecution on behalf of the United States,” Paxton said. “It is even more extraordinary to suppose that Congress would allow the Attorney General to do this for one of the most high-profile and expensive prosecutions imaginable: The unprecedented prosecution of a former President of the United States.”
He also says Congress must weigh in and “speak clearly before courts can conclude that the Attorney General is authorized to wield” such power.
Former president Donald Trump addresses campaign rally at Madison Square Garden in New York City (Oct. 27, 2024).
Donald J. Trump for President
