ACLJ Files Brief at 11th Circuit Calling for Jack Smith’s Disqualification

The ACLJ has filed a major amicus brief at a federal appeals court, calling for Special Counsel Jack Smith’s disqualification from his election lawfare. In our critical amicus brief filed with the United States Court of Appeals for the 11th Circuit, the ACLJ raised fundamental constitutional concerns about the appointment of Special Counsel Jack Smith in the prosecution of former President Donald Trump.

We have fought back against Jack Smith’s unlawful prosecutions before. We filed an amicus brief at the Supreme Court, urging the high Court to recognize that Presidents are entitled to immunity from criminal prosecution for official acts in office. The Supreme Court ruled that the Constitution’s structure entitles the President to presumptive immunity from prosecution for official acts. In that case, Justice Thomas also wrote a scathing concurring opinion in which he questioned the validity of Jack Smith’s appointment as Special Counsel: “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”

Jack Smith has now been disqualified from continuing his prosecution in Florida. Judge Cannon ruled that Jack Smith was improperly appointed. As we said then:

We welcome Judge Cannon’s decision limiting the Attorney General’s authority to appoint a private citizen who has not been confirmed by the U.S. Senate. Such appointments must go through the confirmation process.

The case has now been appealed to the 11th Circuit Court of Appeals. Our amicus brief supports Judge Cannon’s decision and the rule of law. Jack Smith’s appointment violates the Appointments Clause of the United States Constitution because the Special Counsel failed to go through a congressional confirmation process as required by Article II, Section 2, Clause 2 of the U.S. Constitution.

Our brief makes two arguments. First, we argue that, as Special Counsel, Jack Smith is a principal officer of the United States, which would require presidential appointment and Senate confirmation. The brief emphasizes that the Supreme Court’s Appointments Clause jurisprudence requires careful scrutiny of officer classifications. Unlike inferior officers, principal officers must undergo presidential nomination and Senate confirmation – a process Smith has not completed. The brief highlights several key arguments demonstrating that Smith is a principal officer. To summarize:

• Removal Restrictions: Unlike typical government attorneys, Smith can only be removed for good cause, not at will. This significantly limits the Attorney General’s control over him.

• Lack of Meaningful Supervision: The Special Counsel regulations deliberately create an independent role with minimal oversight. Smith is not required to consult with or report to the Attorney General and has broad discretionary powers.

• Decision-Making Authority: Smith possesses extensive investigative and prosecutorial powers across multiple districts, comparable to or potentially broader than those of United States Attorneys.

In short, our brief explained that:

Special Counsel Smith, unlike United States Attorneys, may only be removed for cause. Unlike United States Attorneys, he does not have to report to the Attorney General or proceed according to his instruction and direction. In fact, Special Counsel Smith has expressly been granted the authority to act independently of the Attorney General and not be subject to his direction or control.

Because of the level of authority that he has been given, Special Counsel Smith could only have been appointed by the President. He was not. Merely having a nominal superior does not automatically make someone an inferior officer, especially given the extensive independence granted to Smith.

Second, we argue that Smith has failed to identify any statutory authority that would allow the Attorney General to appoint him as an officer of the United States. The brief systematically examines each statute that Smith cites to claim his authority. None of them allow the appointment of new officers of the United States. Instead, they only allow commissioning attorneys already retained by the Department of Justice, not appointing new officers from outside the government.

The brief emphasizes the broader constitutional significance of this appointment. It argues that the Appointments Clause is a crucial structural safeguard in the constitutional system, designed to maintain political accountability for important government assignments. The United States Constitution imposes upon the President a unique role. Preservation of their ability to perform those duties is crucial to our constitutional order. Were it not the case, as Thomas Jefferson wrote, “[T]he several courts could bandy him from pillar to post, keep him constantly trudging from North to South & East to West, and withdraw him entirely from his constitutional duties.” Unchecked prosecutorial power could paralyze presidential duties, which is exactly what the Framers sought to prevent.

The ACLJ is committed to defending constitutional principles from lawfare, ensuring that governmental appointments adhere to the rigorous standards established by the Founders to protect individual rights and maintain governmental accountability.