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Former attorney general Edwin Meese wrote an Amici Curiae paper to the federal DC Circuit Court of Appeals that Jack Smith's appointment as special prosecutor and counsel in the prosecution of Trump was improper. The basis of his arguments was:

  • The creation of the office of the special counsel was not sanctioned by Congress

  • AG Merrick Garland lacked legal authority to delegate prosecutorial powers to Jack Smith , as per Appointments Clause of Constitution, only the President can do so.

I understand that political bias may very well color any decisions. SCOTUS ruled in Morrison v. Olson that:

  • The use of an independent special prosecutor to investigate members of the Executive Branch for criminal conduct does not violate the separation of powers doctrine as the judiciary is not usurping the prosecutorial power reserved for the executive Branch.

Later federal courts have strengthened Morrison precedent via:

  • Citing this precedent in dismissing defendant's appeals to quash federal indictments citing lack of prosecutorial authority

  • Recognizing in Seila Law v. CFPB that the Morrison precedent is a narrow exception to the President's duties in the Take Care Clause of the Constitution

Jack Smith is present day plaintiff in Morrison case (Alexia Morrison) and Edwin Meese is present day Theordore Olson, the original defendant. Given the parallel of Alexis : Jack , and the same use of a special counsel to prosecute, this precedent should be binding, unless I am misinterpreting.

Question

  • What other basis is Edwin Meese relying on to make this Amici Curiae argument?

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What other basis is Edwin Meese relying on to make this Amici Curiae argument?

You have reasonably summarized the argument being made and its weaknesses in your question.

Meese is really counting on new SCOTUS justices with different legal philosophies that past justices did not accept (such as the "unitary executive theory") overturning past precedents.

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