The Constitution does not empower executive officers to create inferior-officer positions absent an enabling statute.
The Constitution does not empower executive officers to create inferior-officer positions absent an enabling statute.
I should have learned by now never to write from memory. It’s faulty and, alas, I find with increasing frequency, the problem doesn’t get better with age. Given the data at our fingertips with a few pecks at the keyboard (or, when I’m too lazy to peck, by dictating to ChatGPT), there’s no excuse for it. Yet, here I am confessing error for misremembering that Leon Jaworski was the special prosecutor who litigated the subpoena for the Watergate tapes in United States v. Nixon (1974), not Archibald Cox. I mistakenly cited Cox in a recent rumination on whether Jack Smith’s appointment as Biden Justice Department special counsel passes constitutional muster.
It’s alarming to misremember things like this. I was 15 and already obsessed with politics when President Richard M. Nixon resigned in August 1974. The Watergate episode had the nation frenzied. I remember it as if it were yesterday (but it wasn’t, so, trust me, I’ve checked myself): I stared agape at the TV in our Bronx apartment in the summer of 1973 as Alexander Butterfield, a top aide to Nixon’s powerful chief of staff, H. R. Haldeman, testified to the Senate Watergate Committee that the president’s conversations were recorded on a White House taping system. That revelation lit the fuse for the October 1973 explosion known as the “Saturday Night Massacre.”
A few months earlier, Nixon’s attorney general, Richard Kleindienst, had been forced to resign as the Watergate scandal intensified. As I correctly noted in the column, the Democratic-controlled Senate’s confirmation of Elliott Richardson to replace Kleindienst was conditioned on the naming of a Watergate special prosecutor with a measure of independence from the White House. Richardson thus appointed Cox, a wily old Kennedy hand (he’d been JFK’s solicitor general) — a matter of no small importance as the Democrats’ political push on Watergate was spearheaded by Senator Ted Kennedy, then seeking to recover from his Chappaquiddick scandal while eyeing a 1976 campaign for the presidency.
At the time, it was unclear that Nixon had a legal obligation to surrender any of the Watergate tapes — the issue that the Supreme Court would settle the following year (in a decision that, while historic, is not exactly a model of persuasive clarity). There being doubt about his legal authority to compel production of the tapes from the chief executive, Cox tried political pressure: insubordinately resorting to a high-profile press conference — convened while Nixon was dealing with Egypt and Syria’s launch of the Yom Kippur War against Israel — to refuse a proposed White House compromise that would have given him access to some of the tapes.
The enraged president ordered Richardson to fire Cox. Citing his commitment to the Senate, Richardson refused the order and resigned. Next in line, the deputy AG, William Ruckelshaus, also offered to resign rather than fire Cox, maintaining that he, too, had made a commitment to the Senate. (While that was arguably true, the Ruckelshaus commitment was not as clear as Richardson’s, and Nixon thus fired him for defying the order to dismiss Cox, rather than allowing him to resign.)
No such commitment had been sought from the DOJ’s third-ranking officer, solicitor general Robert H. Bork. He’d been tapped for the post soon after Nixon’s landslide 1972 reelection victory, before the Watergate scandal exploded. As the iconic Judge Bork recounted in Saving Justice, a memoir posthumously published in 2013, Richardson and Ruckelshaus prevailed upon him not to resign, fearing it would trigger a wave of resignations that would cripple DOJ as an institution.
Bork fired Cox and reluctantly agreed to serve as acting AG, but not to be nominated as AG — eschewing the appearance of having acted for political self-advancement. He was adamant that Nixon had terminated only Cox’s appointment, not the Watergate investigation, which would continue apace. Bork worked to reassure the probe’s staff, promising to support appropriate subpoenas. He also persuaded the White House to green-light the appointment of an outside special prosecutor to replace Cox — a lawyer with sterling credentials who would give the investigation credibility.
Bork chose Jaworski, a former American Bar Association president who had been among the first World War II war-crimes prosecutors (before the tribunals were moved to Nuremburg). It was Jaworski who subpoenaed the tapes in connection with the criminal prosecution of such major Watergate figures as Haldeman, former attorney general John Mitchell, and close Nixon adviser John Ehrlichman. When the Nixon Court ordered that the president surrender the tapes, he complied — although controversy remains over the infamous 18-minute gap in one of them that, as Bork’s memoir observes, “marked the beginning of the final lap of the Nixon presidency.” (Nixon, or course, was pardoned by President Gerald Ford after resigning; I do not believe there was a compelling criminal case against him but, thankfully for the country’s sake, he was never charged.)
This is riveting American history that I lived through, that I was transfixed by, as a teenager. But I have reasons better than that for kicking myself over the brain cramp. Not only was I privileged to befriend Judge Bork in the last years of his amazing life; I reviewed Saving Justice for the New Criterion when it was published over a decade ago. And it was only two years ago that I participated in Law & Liberty’s 50th-anniversary retrospective on Watergate. In that connection, I gobbled up The Nixon Conspiracy: Watergate and the Plot to Remove the President, a history of the episode written by Geoff Shepard, a former staffer in Nixon’s White House and deputy counsel of his Watergate defense team.
What’s that they say? Less important than the things we don’t know are the things we’re sure about . . . that are wrong. Anyway, this history is suddenly vital once again.
One of the more remarkable aspects of Trump v. United States — this week’s Supreme Court ruling that former presidents have at least presumptive immunity from criminal prosecution — was the concurring opinion of Justice Clarence Thomas. Beyond his view that the Constitution does not permit criminal prosecutions of a former president for official acts in office, Justice Thomas appears convinced that Jack Smith is ineligible to lead the prosecution of former president Trump because his office was not “established by Law,” as the appointments clause mandates. That was the topic of the piece in which I garbled the Watergate roles of Cox and Jaworski.
We will all have to master this history anew. Smith must be an officer of the United States to qualify for his position. He is clearly not a principal officer — as I detailed, such officers must be appointed by the president and confirmed by the Senate, which Smith was not. In seeking to justify the appointment, Smith and the Justice Department maintain that he is an inferior officer who is properly supervised by Attorney General Merrick Garland — notwithstanding Garland’s prior representations that Smith is an essentially independent actor. Yet, under the Constitution’s appointments clause, an inferior officer’s position must be “established by Law” — meaning, by a congressional statute. Smith, to the contrary, was appointed by Garland under regulations unilaterally promulgated by Clinton attorney general Janet Reno after the independent-counsel statute lapsed.
The Constitution does not empower executive officers to create inferior-officer positions absent an enabling statute. In dubiously positing that Garland had such statutory authorization, Smith and the DOJ claim their position is supported by (a) the Nixon case, in which the Supreme Court upheld Jaworski’s subpoena, and (b) by D.C. Circuit precedent, particularly the circuit’s rejection, in In re: Grand Jury Investigation (2019), of a challenge to special counsel Robert Mueller’s special-counsel appointment in Russiagate — an appointment that, like Smith’s, was under the regulations.
As I’ve detailed, however, the question of whether Jaworski was properly appointed was not before the Supreme Court in Nixon — at issue there was the enforceability of the subpoena for Nixon’s tapes. Meanwhile, the D.C. Circuit did not so much uphold Mueller’s appointment as decline to engage objections to it.
The three-judge panel in In re: Grand Jury Subpoena wrongly claimed that the appointments-clause issue had been resolved by Nixon, though it hadn’t even been litigated in Nixon. The Circuit rationalized that by entertaining Jaworski’s subpoenas, the Supreme Court must implicitly have validated his appointment; to the contrary, the validity of the appointment was not challenged. Otherwise, the panel trotted out a hodgepodge of statutes covering the attorney general’s authority that do not actually authorize the AG to create the special-counsel position; then, finally, the judges threw up their hands, peremptorily stating that “this court has no need to identify the specific sources of this authority” because the defendant in the case had supposedly waived his right to challenge Mueller’s status.
Not very convincing, to say the least. And now, Justice Thomas has weighed in, noting that the discussion of statutory authority in Nixon was a “passing reference” that “provided no analysis of those provisions’ text.” By contrast, Thomas performs a methodical survey and finds that “none of the statutes cited by the Attorney General appears to create an office for the Special Counsel.”
I happen to think he’s right, as do former attorneys general Edwin Meese III and Michael Mukasey, along with other luminaries who’ve joined friend-of-the-court briefs to that effect in Smith’s Florida case against Trump. But under the circumstances, I’ll take heed of a deeper point. I take Justice Thomas to be admonishing that we can’t just assume history supports a proposition, even if we’ve lived through it and believe we can relate it accurately. There is no substitute for revisiting the record, which rewards us with new insights as well as powerful reminders that clarify what we thought we knew.
Regardless of how one comes out on the special-counsel controversy, that’s sound advice.