Commentary: Jack Smith lacks standing to file in the Supreme Court!
The Justices must sua sponte address Jack Smith's lack of standing.
by Steven Calabresi
December 21, 2023 - Private citizen Jack Smith lacks standing to petition the Supreme Court for a writ of certiorari before judgement in United States v. Trump for the same reason I do. Jack Smith is in the eyes of the Supreme Court a private citizen, not an officer of the United States. Standing issues need not be raised by the parties to a case nor can they be waived. The Supreme Court justices must address them sua sponte.
The Supreme Court in United States v. Nixon overlooked Leo Jaworski's lack of standing because, if one consults the briefs in that case, one will find that no party ever raised the issue. The Court cursorily assumed Jaworski was legally appointed without ever examining the issue raised by me, former Attorney General Edwin Meese, and Professor Gary Lawson. We discuss this issue at length in Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel Was Unlawful, 95 Notre Dame Law Review 87, at pp. 118-125 (2019). The D.C. Circuit and District Courts have declined to readdress this issue because of erroneous precedent in the D.C. Circuit, which does not bind the Supreme Court, and in which the standing issue was never raised.
A more recent D.C. Circuit and District Court affirmed the legality of Robert Muller's appointment without a sustained response to our argument that none of the statutes cited by the Department of InJustice in support of the legality of Robert Mueller's appointment. Jack Smith's case is a new case.
Standing issues never go away but may be raised at any point in any litigation. The fact of the matter is that everything Jack Smith has done as Special Counsel, since his appointment on November 18, 2022, has been unconstitutional and is null and void. Anyone now in jail, or subject to a plea bargain, with Jack Smith can ask to be released because Jack Smith is, in truth, a private citizen. The judge in the Florida District Court classified documents case is under the jurisdiction of the 11th Circuit and is not bound by D.C. Circuit precedent. Any litigant in a case before her can argue that Jack Smith is not a lawfully appointed officer of the United States.
Steven Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III.
