'9 days to respond': Far-right House Republicans issue ultimatum to Jack Smith

01 February 2024

Four House Republicans have sent a letter to Department of Justice special counsel Jack Smith challenging his standing to prosecute former President Donald Trump.

The letter — which was co-signed by Reps. Eric Burlison (R- Missouri), Michael Cloud (R-Texas), Marjorie Taylor Greene (R-Georgia) and Anna Paulina Luna (R-Florida) — asserts that there has not been appropriate congressional oversight of Smith's office or his investigation into Trump. The letter's signatories are asking Smith to provide them with "all documents and communications concerning your authority" to empanel grand juries in the two federal court districts where he's prosecuting the former president, as well as Smith's authority to have those grand juries return indictments, and his authority to offer immunity in exchange for testimony as well as documents pertaining to DOJ oversight.

"We respectfully request a response from you on or before 1pm [on] February 9, 2024," Burlison, Cloud, Greene and Luna wrote.

Conservatives have argued that because Smith was not formally appointed by the president of the United States and confirmed by the US Senate, he is merely a private citizen and does not have the Constitutional authority to prosecute Trump. Ed Meese, who was attorney general under President Ronald Reagan, filed an amicus curiae ("friend of the court") brief before the DC Circuit Court of Appeals last month arguing that Smith's appointment was improper and that his prosecution of Trump is therefore null and void.

"Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor," Meese's brief read. "Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé."

Meese further argued that the statutory authority Attorney General Merrick Garland claimed gave him the power to appoint Smith as special counsel did not authorize "the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel," adding that "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."

However, the DC Circuit is unlikely to take that argument seriously, as there have been three special counsel appointments not confirmed by the US Senate. In 1999, then-Attorney General Janet Reno appointed John Danforth as special counsel to investigate the siege of cult leader David Koresh's compound in Waco, Texas. Then in 2003, then-Deputy Attorney General James Comey — following the recusal of Attorney General John Ashcroft — appointed Patrick Fitzgerald as special counsel to oversee the Valerie Plame affair. And in 2017, Robert Mueller was appointed special counsel by then-Deputy Attorney General Rod Rosenstein to look into alleged Russian interference in the 2016 presidential election after Attorney General Jeff Sessions recused himself.

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