Nothing might change — except the politics of the 2024 presidential campaign.
Nothing might change — except the politics of the 2024 presidential campaign.
I n the coming weeks, there is a very real possibility that the federal district court in Florida will rule that Attorney General Merrick Garland’s appointment of Jack Smith as a special counsel (SC) violated the Constitution’s appointments clause (Art. II, §2, cl.2).
If Judge Aileen Cannon, the Trump-appointee who is presiding over Smith’s illegal document-retention prosecution against former president Trump, were to make such a ruling, would the Biden Justice Department have to start the case over from scratch? Perhaps, but I think that’s unlikely.
More likely: AG Garland would have to reassign the case to a district U.S. attorney appointed by President Biden. That probably wouldn’t cause much delay. It would, however, force Garland to abandon his independent-prosecutor deception — i.e., the artifice by which he and Biden claim that they have no involvement in the government’s prosecution of Biden’s electoral opponent and that all decisions are being made by Smith, a supposedly independent actor. In truth, Biden and Garland are controlling the Trump prosecutions — as a matter of constitutional law, and as a matter of fact.
The Constitution’s Appointments Clause
The deception is not hard to grasp. The attendant legal technicalities, however, are complex because of the Constitution’s appointments clause, which says that the president
. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. [Emphasis added]
There is a bit more to the clause, which we’ll come to. For starters, let’s stick with this first part.
Attorneys who authorize the investigation and prosecution of federal crimes must be officers of the United States because they wield significant government power. Under the clause, there are just two ways of qualifying as an officer of the United States: the appointee must either be (a) nominated by the president and confirmed by the Senate, or (b) appointed to a position that “shall be established by law” — which is to say, by a congressional statute.
Smith, who has run the Trump investigations since his SC appointment by Garland on November 18, 2022, was not appointed under either of those procedures. To the contrary, he was purportedly appointed under the Justice Department’s SC regulations. I say “purportedly” for two reasons.
First, Garland notoriously flouts the SC regulations. He picks and chooses which regs he is claiming to follow depending on the Biden administration’s political needs of the moment, and, when expedient, he pulls his ace in the hole: §600.10 (the last of the ten regs), which provides that no one can force the Justice Department to follow its regulations — so the AG can ignore them at will. As I’ve previously explained, Garland flouted the SC regulations in appointing Smith because he was trying to project the fiction that he and Biden were not behind the Trump prosecutions.
Second, a mere regulation cannot override statutory law, much less the Constitution. Ergo, if the Constitution mandates that officer positions (other than those the Constitution itself creates) must be established by law, then they must be established by statute, not by a DOJ regulation. To be sure, Garland has broad authority to assign any Justice Department lawyer to any matter he chooses, but as an executive officer, he has no power to create an officer-of-the-United States position. Only Congress can do that.
The attack on Smith’s constitutional qualifications has been mounted by the Trump defense in Florida with the assistance of formidable friends of the court — amicus briefs have been filed by, among others, former attorneys general Edwin Meese III and Michael B. Mukasey (in collaboration with Citizens United and law professors Steven Calabresi and Gary Lawson) and appointments-clause scholar Seth Barrett Tillman and the Landmark Legal Foundation (filed by law professor Josh Blackman).
In essence, they observe that Garland has purported to vest in Smith “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney” (quoting from §600.6 of the special-counsel regulations). Yet, U.S. attorneys are permitted to wield these powers only because they are officers of the United States. Smith is not.
Even ‘Inferior Officers’ Must Be Established by Statute
This brings us to some common misunderstandings about the appointments clause.
The clause creates a second category of officer of the United States — the “inferior officer.” For that reason, the first category of officers we’ve already discussed (those established either by the Constitution or by statute to wield significant powers) are referred to as principal officers. That distinguishes them from the second category, inferior officers.
When I excerpted the start of the appointments clause, above, I mentioned that we’d be getting to the rest of the clause. It deals with inferior officers and reads as follows:
. . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [Emphasis added]
Inferior officers are inferior either because (a) the government authority they exercise is not as significant as that exercised by principal officers or (b) when they are permitted to exercise significant power, they do so under the supervision of superior officers.
As the clause clearly provides, the manner of appointing inferior officers is up to Congress. There is an important limitation on Congress’s power in this regard: the Constitution’s overarching separation-of-powers principle. That is, Congress may not structure appointments of executive- or judicial-branch officers in a manner that would enable Congress, rather than the president or the courts, to exercise executive or judicial power. Executive officers — whether principal of inferior — must answer to and be removable by the president; and Article III judges must be independent of the political branches. Beyond that, Congress has broad latitude in prescribing how inferior officers are to be vetted before assuming their statutorily created positions.
Which Officers Must Be Subject to Presidential Appointment and Senate Confirmation?
This is the cause of confusion. Many people, including many experienced lawyers, assume that if a government official must be nominated by the president and confirmed by the Senate, then that official must be a principal officer. Not true.
When Congress establishes inferior-officer positions, it sometimes requires presidential appointment and Senate confirmation. But it doesn’t have to. Congress could, for example, vest the AG (the “Head of a Department” in appointments-clause parlance) to name a person to an inferior-officer position that Congress has created, with no Senate vetting. Yet, Congress usually prefers to prescribe a Senate-confirmation requirement because that gives Congress more control over appointments. Statutorily mandating Senate confirmation discourages the executive branch from appointing officers whom Congress would find unacceptable (but Congress does not thereby intrude into the operation of the executive branch, so there is no separation-of-powers problem).
Here’s the salient distinction, though: Regardless of whether Congress assigns the president, a court, or a department head to appoint an inferior officer, and regardless of what qualification process Congress prescribes for an inferior officer, it is up to Congress by law — i.e., by statute — to create the inferior-officer position. A head of a department, such as AG Garland, has no power to create a position.
Whether District U.S. Attorneys Are Principal or Inferior Officers, Smith Is Neither
Let’s address some confusion that attends a pair of arguments (con and pro) about Smith’s status.
- Many who object to Smith’s SC appointment argue that he is ineligible because (as noted above) Garland purported to vest him with the same power as that wielded by a district U.S. attorney. (I am speaking here about arguments against Smith made in the commentariat, not the more exacting ones advanced by Meese, Mukasey, Blackman, and other scholars who have filed briefs in the case.) These dissenters claim that Smith is not qualified to exercise the same power as a U.S. attorney because, unlike U.S. attorneys, he was not appointed by the president and confirmed by the Senate before taking the SC office.
- Smith counters that, as SC, he is an inferior officer closely supervised by AG Garland. Needless to say, that is rich since Garland appointed Smith solely to advance the administration’s political claim that Garland, the Biden Justice Department, and President Biden have nothing to do with the prosecutions of Trump — those, Garland has repeatedly insisted, were undertaken by Smith alone in his utterly independent judgment. But let’s put that hypocrisy aside, for the moment. Smith’s contention is that the SC position passes appointments-clause muster because he is an inferior officer. He analogizes his position to past independent counsels and other SCs, whose appointments have been upheld over appointment-clause challenges.
Both of these arguments are wrong.
First, it is not at all clear that the Constitution requires district U.S. attorneys to be presidentially nominated and Senate-confirmed. The Constitution mandates that process only for principal officers; while the matter has never been conclusively decided by the Supreme Court, it is possible that U.S. attorneys are inferior officers. That is, it may well be that U.S. attorneys are subject to appointment by the president and confirmation by the Senate only because Congress has required it by statute — specifically, §541 of Title 28, U.S. Code.
Still, even if U.S. attorneys are arguably inferior officers who are not constitutionally subject to presidential nomination and Senate confirmation, that would not legitimize the SC appointment of Smith, who is not presidentially nominated or Senate-confirmed. No matter what vetting procedure Congress required for U.S. attorneys, they are appointed by law; Smith is not.
The position of U.S. attorney, its presumptive four-year term, and the appointments process for qualifying for the position are laid out in §541. There are 94 U.S. attorneys, one in each of the federal districts across the nation and its territories. U.S. attorneys oversee federal prosecutions in those districts, hiring and supervising assistant U.S. attorneys who directly handle the cases. I, for example, was an assistant U.S. attorney for nearly 20 years.
District U.S. attorneys also have a measure of independence from “Main Justice” — the Justice Department’s Washington headquarters, where the AG, the deputy AG, and other top, presidentially appointed DOJ officers and their direct reports are stationed. That is, district U.S. attorneys are supervised by and report to the AG, who has the power to assign them to take any case in the country and to remove them from any case in their own districts. Yet, as presidential appointees, district U.S. attorneys can be fired only by the president — the AG has no authority to remove them from office.
Because U.S. attorneys wield significant power, have fixed multi-year terms (i.e., theirs is not an ad hoc position created for a single investigation or a limited purpose), and can be removed only by the president, there is a colorable constitutional argument that they are principal officers. But because they answer to superior officers (the AG and deputy AG) in a chain of command, are expected to follow Justice Department policy, must obtain Main Justice approval to file certain charges, and can be assigned to and removed from cases, the argument that they are inferior officers may be stronger — as, for example, the First Circuit U.S. Court of Appeals decided that it was in United States v. Hilario (2000).
Consequently, the fact that Smith was not nominated by President Biden and confirmed by the Senate to act as a SC is not necessarily disqualifying. It is possible that a prosecutor whose remit is the equivalent of a U.S. attorney’s is an inferior officer, and the Constitution does not require an inferior officer to be presidentially nominated and Senate-confirmed.
Nevertheless, because a prosecutor who is the functional equivalent of a district U.S. attorney must, at the very least, have the status of an inferior officer, Smith does not qualify. His position was not established by law. Hence, Smith is merely an employee of the United States. As a matter of constitutional law, an employee may not exercise the authority of an officer — neither principal nor inferior. An employee of the United States may legitimately perform an officer’s functions only under the supervision of an appropriately empowered officer. Because his position is not created by statute, an employee lacks his own authority to perform an officer’s functions.
Garland has defined Smith’s own authority to be the same powers vested in a district U.S. attorney. Indeed, according to Garland, Smith operates with even more autonomy than does a district U.S. attorney. As Congress has not created Smith’s SC position, this violates the Constitution.
Analogies to Past Cases Are Unavailing
The media have taken to reporting that Trump’s challenge to Smith’s status is unconvincing because courts have rejected similar challenges over the years. The word “similar” is working overtime in that critique. While “similar,” Trump’s challenge is not the same as those that have previously failed.
For example, challenges have been made to the authority of independent counsels (IC). But unlike Smith’s SC appointment, the position of IC was created by statute — a statute that lapsed in 1999. (I happen to agree with Justice Antonin Scalia’s legendary 1988 dissent in Morrison v. Olson that the IC position, as crafted in that statute, was unconstitutional, but that is neither here nor there for present purposes because Smith is not an IC.)
It has also been pointed out that Patrick Fitzgerald, John Durham, and David Weiss were appointed SCs in, respectively, the Valerie Plame, Russiagate, and Hunter Biden probes without being nominated or confirmed as SCs for those cases. Those appointments, however, were saliently different from Smith’s on two grounds.
First, those three appointments were not made under the SC regulations that Garland purports to have followed in appointing Smith (as I have explained in connection with both Weiss and Durham). Second, when appointed to their so-called special-counsel investigations, Weiss, Durham, and Fitzgerald were all district U.S. attorneys (for the districts of Delaware, Connecticut, and Northern Illinois, respectively). In fact, their being U.S. attorneys — high-ranking DOJ officials — made Weiss, Durham, and Fitzgerald unqualified to be SCs under the SC regulations, which mandate that SCs must be recruited from outside the government (see §600.3).
Those district U.S. attorneys may have been labeled “special counsel” for public consumption, but their constitutional authority to preside over those investigations traced to their status as officers of the United States who had been appointed as such by statute — i.e., nominated by the president and confirmed by the Senate, pursuant to §541. No one is disputing that an AG has the authority to assign any district U.S. attorney to assume control of any federal criminal investigation and prosecution anywhere in the United States. Smith, however, is not a district U.S. attorney. He was not appointed under §541, and his SC position and purported authority to exercise the same powers as district U.S. attorneys were not established by statute.
Finally, defenders of Smith’s appointment seize on the Watergate case, United States v. Nixon (1974). There, the Supreme Court observed that AG Elliot Richardson, “pursuant to” the power “vested in him [by various statutes] to appoint subordinate officers,” had named a “special prosecutor” — Archibald Cox — to take over the Watergate investigation of President Nixon and his underlings. Cox was not presidentially appointed or Senate-confirmed, and there was no “special prosecutor” statute.
Still, the Supreme Court’s observation about the basis for his appointment is nonbinding dictum. In the Nixon case, the issue before the Court was the enforceability against Nixon of a trial subpoena issued by Cox demanding that he turn over the infamous White House tapes. The constitutional validity of the special prosecutor’s appointment was not challenged — probably because Nixon was not a defendant in the criminal case Cox was prosecuting and because, as everyone knew at the time, Richardson would not have been confirmed as AG by the Democratic-dominated Senate unless he had appointed a Watergate special prosecutor from outside the administration.
In any event, the claim regarding Cox’s authority was not raised in Nixon. By contrast, it has been squarely raised regarding Smith’s authority by Trump’s defense.
Moreover, Cox was not a special counsel purportedly appointed under the current regulations on which Smith and Garland rely; rather, he was a special prosecutor appointed under a 1973 regulation issued by Richardson related specifically to Watergate. (See Nixon, footnote 8.) That was before Congress, to try to solidify the status of lawyers brought in to handle criminal investigations when the Justice Department is conflicted, enacted the aforementioned and now lapsed independent-counsel statute — the constitutionality of which was convincingly called into question by Justice Scalia’s Morrison v. Olson dissent. The Nixon dictum does not even address, much less cure, the infirmity of Smith’s appointment — the fact that he is not appointed by law.
What Happens If Smith Is Ruled Ineligible?
To be clear, none of this means that there is anything unlawful about Garland’s recruitment of Smith from outside the government to work on the Trump investigations. The illegitimacy lies in Smith’s running the Trump investigations. Smith is not an officer of the United States in a position established by law. To work on the case, then, he should have to work under the supervision of a proper officer — like any other government employee. The Trump investigations must be assigned to qualified officers of the United States, such as a district U.S. attorney.
Laughably, as recently I pointed out, Smith now claims that he is working under Garland’s close supervision. That, however, flies in the face of the very purpose — the political purpose — of his appointment.
There has never been a conflict of interest that would have ethically impeded the Biden Justice Department from investigating Trump. That’s why the Justice Department investigated Trump for nearly two years — in connection with both the January 6 and Mar-a-Lago probes — prior to Smith’s appointment. Garland used Trump’s early announcement that he’d be a candidate for the presidency as a pretext to claim that this created a conflict warranting an SC appointment.
In reality, it did no such thing. But by that point, Garland had to know that the Biden Justice Department was going to indict Trump and that Trump would claim that Biden was using his control over the Justice Department as a partisan weapon. To blunt that political claim by Biden’s campaign rival, Garland brought in Smith as his cutout: It enabled Garland to claim that all decisions regarding investigations of Trump were being made by an experienced, independent attorney from outside the government, with no input from Garland and other Biden political appointees.
It was always a farce: Smith’s prosecution teams are threaded with attorneys from the Biden and Obama-Biden Justice Departments. Plus, it is an unavoidable constitutional fact that the prosecutions of Trump are brought under Biden’s authority — under the Constitution, all executive power is vested in the president, and prosecution is a quintessentially executive power.
If Judge Cannon rules that Smith’s SC appointment violates the appointments clause, I don’t see how Garland would have any choice but to reassign the Trump investigations to a qualified officer of the United States. Were the AG to suddenly claim that he (Garland) has been running the case and closely supervising Smith all along, it would be tantamount to admitting that he’s been misleading the country for the past two years. On the contrary, were Garland to reaffirm his previous claims of noninvolvement, it would be tantamount to conceding that he improperly vested the powers of a district U.S. attorney in an outside lawyer whose position was not established by Congress and who has been neither appointed by the president nor confirmed by the Senate.
If Judge Cannon does conclude that Smith is ineligible, I do not believe the Mar-a-Lago documents-retention case in Florida, and perhaps the January 6 case in Washington, D.C., would necessarily have to start over again. Undoubtedly, Trump would seek dismissal of the indictments. Yet, I suspect that Garland could reassign the cases to qualified district U.S. attorneys. With the permission of the assigned judges, and with the help of Smith and his staff, those U.S. attorneys could quickly familiarize themselves with the proceedings. They could probably approve them without having to redo the indictments and prior proceedings; they would then supervise the proceedings going forward.
Nothing would change except the politics of the 2024 presidential campaign: It would be clear for all to see that the Justice Department, under President Biden’s control and authority, is prosecuting Biden’s electoral opponent, Donald Trump, including on charges of illegally retaining national-defense intelligence — felony charges of the same kind that the same Biden Justice Department declined to bring against Biden.