How the Supreme Court can watch the growing mass rejection of their Dobbs disaster and the increasing threats to democracy posed by the man to whom they have offered immunity without experiencing profound shame and apologizing to us is beyond me. Multiple grand juries of Donald Trump’s peers—having considered compelling evidence—have indicted him for a variety of crimes. It used to be that the Sixth Amendment of the Constitution and the jury system were the cornerstone and pride of our justice system. Trump’s legal team and a series of ultra-cooperative judges, however, have done everything in their power to nullify the process the Founders regarded as critical:
More than ever, I am thankful that Manhattan District Attorney Alvin Bragg, New York Attorney General Letitia James, and Special Counsel Jack Smith continue to fight for justice and accountability. Because as Vice President Kamala Harris has repeatedly reminded us, local, state, and federal prosecutors represent the people, and they haven’t surrendered to the combination of stupidity and judicial tyranny at work in our land.
Special Counsel Jack Smith represents us on two different fronts. Today, I am going to focus on Smith’s attempt to undo the damaging decision of Judge Aileen Cannon of the Southern District in Fort Pierce, Fla., to prevent a jury from ever hearing the evidence, and rendering a verdict, for or against former President Donald Trump for his alleged efforts to steal and hide vital national security documents of the United States.
In a previous column, I wrote:
With extraordinary arrogance and remarkably limited legal acumen, Judge Cannon shut down the Mar-a-Lago stolen-documents case before it even began. The case many experts regarded as the most open-and-shut case against Donald Trump.
You can find Smith’s July 27, 2023, indictment here.
Just to remind you:
The case, played out over the last few years, revolves around the multiple attempts the National Archives and Records Administration (NARA) made to regain possession of the documents. Unfortunately, its reasonable attempts were met with the continuing efforts of Donald Trump and his co-conspirators to lie about the number of documents Trump had taken, then, by hiding many and refusing to give them back, impeding and obstructing NARA, as well as the FBI.
The various Trump indictments have now been irretrievably tied together by the decision of the Supreme Court in the immunity case. No longer is it true that no one is above the law. The president, by successfully arguing that even illegal actions have been undertaken as part of his/her official duties, what the Court terms the “President’s exercise of his core constitutional powers,” he or she is therefore provided with absolute immunity from prosecution. The Supreme Court emphasizes, “When the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions.”
The Court then made any attempt at prosecuting a case against a president far more difficult by prohibiting the introduction of evidence and discussion of what underlies most prosecutions: the motive of the defendant. Motive can’t be used in the logical and critical attempt to distinguish a legitimate official act versus an unofficial criminal act:
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a ‘highly intrusive’ inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose. Fitzgerald, 457 U. S., at 756. Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,” depriving immunity of its intended effect.’
Forgive me, but isn’t committing a crime sufficiently “intrusive” to allow for prosecution?
While these immunity concerns seem less likely to surface in the case of the former president’s decision to remove classified documents from the White House and then fail to return them to NARA, Donald Trump and Judge Aileen Cannon seized upon arguments made by Supreme Court Justice Clarence Thomas in his concurring opinion that challenges the very standing of Special Counsel Smith and, therefore, the legality of the D.C. election-interference indictment he brought:
The Trump team quickly echoed Thomas’ claim that Special Counsel Jack Smith was illegally appointed. And Judge Cannon, encouraged by Justice Thomas’ concurrence, took up Donald Trump’s call for her to toss the case out in his February 22, 2024 “Motion to Dismiss Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith”:
This gets a bit technical, but it is critical to the claims of Donald Trump’s legal team and Cannon’s decision. Trump asserted:
The creation of the Special Counsel Office violated the Appointments Clause. The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States … The Appointments Clause requires that all federal offices ‘not . . . otherwise provided for’ in the Constitution—every office other than the president—must be ‘established by Law,’ i.e., by Congress. U.S. CONST. art. II, § 2, cl. 2. The Appointments Clause requires that any appointment be with the ‘Advice and Consent of the Senate.’ Id. It follows, then, that to properly establish a federal office, Congress must enact it …
Then Trump makes the following claim about Article 1, Section 8:
The Necessary and Proper Clause authorizes Congress to create federal offices to exercise such power. See U.S. CONST. art. I, § 8, cl. 18 … There is, however, no statute establishing the Office of Special Counsel. As a ‘Special Counsel,’ Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires.
In her decision, “Order Granting Motion to Dismiss Superseding Indictment Based on Appointments Cause Violation,” Judge Cannon explains:
The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter, ‘Special Counsel Smith’ or ‘Special Counsel’) in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further [ECF No. 326].
By describing these issues as “matters of first impression,” as the Cornell Law School notes, Cannon declares these are new legal issues that have not been addressed “by that court, or within that court’s jurisdiction, thus there is no binding authority on that matter.”
She explains:
Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment-28 U.S.C. §§ 509, 510, 515, 533— gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.
Note the remarkable lack of respect and unnecessary nastiness at work here: “Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority …”
But Judge Cannon isn’t done. Not only does she declare Special Counsel Jack Smith’s work unpersuasive, she accuses him and the Department of Justice of “threatening the structural liberty inherent in the separation of powers.”
Then, in a remarkable paragraph that details her reasoning, Judge Cannon dismisses out of hand all of the examples Special Counsel Smith has cited to show the very specific federal legislation that allows the attorney general to appoint special prosecutors and special counsels. She discounts the legislation that allows for their ability to fund those offices, then pivots to dismiss the Supreme Court opinion in the 1974 United States v, Nixon, a groundbreaking decision that whole-heartedly endorsed the appointment of the special prosecutor:
Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixed historical record to deviate from the absence of such authority – the Court addresses the Supreme Court’s dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974). As the Nixon decision and record bear out, the Attorney General’s statutory appointment authority, or the matter of the Appointments Clause more generally, was not raised, argued, disputed, or analyzed; at most, the Supreme Court assumed without deciding that the Attorney General possessed statutory appointment authority over the special prosecutor involved in that action. Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to the question whether Special Counsel Smith is a principal officer requiring Presidential nomination and Senatorial consent. On that issue, although there are compelling arguments in favor of a principal-officer designation given the regulatory framework under which he operates, the Court rejects the position based on the available Supreme Court guidance. The Court then examines the question of remedy, concluding that dismissal of this action is the only appropriate solution for the Appointments Clause violation. (Emphasis added.)
Cannon has made the stunning claim that the Supreme Court in United State v. Nixon never really made an informed and definitive opinion about the constitutionality of the appointment of a special prosecutor by the attorney general, or the legitimacy of his issuance of a subpoena for documents and recordings from the Nixon White House. Cannon claims that these discussions were merely “dictum.” So let’s return to the definition of “dictum” provided by Cornell Law: “A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.” (Emphasis added.)
Cannon thereby attempts to free herself from an opinion that has been relied upon and considered binding since 1974, to free herself from the standard obligation to be bound by the decisions of courts higher than hers, and most critically the highest court in the land. Obviously, no precedence bounds Cannon.
On the street, “taking someone to school” can often mean two things: schooling or teaching someone who doesn’t know something, or it can often mean beating them at the game that is being played, the task at hand, and showing them how it is really done. In his “Brief for the United States before the United States Court of Appeals for the Eleventh Circuit” contesting Judge Aileen Cannon’s dismissal of United States v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira, Jack Smith schools Cannon, simply explaining the federal laws that govern these issues while emphasizing the universally accepted significance of United States v. Nixon.
Quite simply, Special Counsel Smith quickly and succinctly demonstrates the legitimacy of the work he and his office and the grand jury did together:
Congress has bestowed on the Attorney General, like the heads of many Executive Departments, broad authority to structure the agency he leads to carry out the responsibilities imposed on him by law. Two statutes provide the Attorney General the specific authority to appoint special counsels to carry out his law-enforcement missions. 28 U.S.C. §§ 515(b), 533(1).
Smith continues:
Two other statutes confer on the Attorney General the necessary overarching authority to staff, structure, and direct the operations of the Justice Department, which includes the power to appoint inferior officers and assign specific matters to attorneys such as the Special Counsel. 28 U.S.C. §§ 509, 510. Precedent and history confirm those authorities, as do the long tradition of special-counsel appointments by Attorneys General and Congress’s endorsement of that practice through appropriations and other legislation. The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the Attorney General has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government. This Court should reverse.
The Appointments Clause of the Constitution provides that officers of the United States shall be appointed by the President with the advice and consent of the Senate. U.S. Const. art. II, § 2, cl. 2. But 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.)
To connect the dots, Smith argues:
Congress has provided that the Attorney General shall be the ‘head of the Department of Justice,’ to be appointed by the President with the advice and consent of the Senate. 28 U.S.C. § 503. Congress has, with three limited exceptions not relevant here, ‘vested’ in the Attorney General ‘[a]ll functions of other officers of the Department of Justice,’ id. § 509—including the power to prosecute ‘all offenses against the United States,’ id. § 547(1), and to supervise ‘the conduct of litigation’ on behalf of the United States, id. § 516 and has empowered the Attorney General to authorize ‘any other officer, employee, or agency of the Department of Justice’ to perform any of those functions, id. § 510. In addition, Congress has authorized the Attorney General to commission attorneys ‘specially retained under authority of the Department of Justice’ as ‘special assistant[s] to the Attorney General or special attorney[s]’ and has provided that ‘any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, . . . which United States attorneys are authorized by law to conduct.’ Id. § 515(a), (b). Congress has further provided that the Attorney General ‘may appoint officials . . . to detect and prosecute crimes against the United States.’ Id. § 533(1). (Emphasis added.)
Jack Smith then systematically responds to Cannon’s arguments, sometimes smacking back at Cannon for her unnecessary nastiness and faulty reasoning:
The Attorney General validly appointed the Special Counsel, who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels …
A. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court determined that the Attorney General had statutory authority under 28 U.S.C. §§ 509, 510, 515, and 533 to appoint a special prosecutor comparable to the Special Counsel. Id. at 694-95. Apart from the district court below, every court to consider the question has concluded that the Supreme Court’s determination that those statutes authorized the Attorney General to appoint the Watergate Special Prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts …
The district court erred when it deemed that conclusion unpersuasive dicta. Nixon’s statutory analysis was integral to the Court’s ‘ultimate conclusion’ and therefore ‘authoritative.’ United States v. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 623 (D.D.C. 2018). The district court likewise erred in reasoning that the Supreme Court had assumed the issue without deciding. The Supreme Court regularly uses qualifying language to indicate assumed premises but included no such caveat in Nixon when discussing the Attorney General’s authority to appoint the Special Prosecutor. Nixon therefore binds this Court, just as it did the district court, and reversal is warranted on that ground alone.
B. The statutes that the Supreme Court cited in Nixon—28 U.S.C. §§ 509, 510, 515, and 533—authorized the Attorney General to appoint the Special Counsel here.
1. Section 515 consists of two subsections that, taken together, make clear that the Attorney General may appoint a special counsel. Section 515(b) empowers the Attorney General to ‘commission’ attorneys who are ‘specially retained under authority of the Department of Justice’ as ‘special assistant[s] to the Attorney General’ or ‘special attorney[s],’ and who must ‘take the oath required by law.’ Section 515(a) confirms that the Attorney General may vest such ‘specially appointed’ attorneys with the power to undertake any civil or criminal proceedings. Read as a whole, Section 515 thus authorizes the Attorney General to appoint special attorneys and confirms that he can grant them prosecutorial authority over specifically identified matters.
The district court’s contrary reasoning lacks merit. Its focus on the absence of the word ‘appoint’ in Section 515(b) ignores that the term ‘retain’ is synonymous with ‘appoint’ as used in Section 515—as the statute’s enactment history makes clear—and that the word ‘appoint’ appears in Section 515(a), confirming that the statute provides appointment authority. The district court’s determination that the phrase ‘specially retained’ in Section 515(b) is a past-tense verb that only applies to already-retained attorneys misunderstands the statute’s grammatical construction—‘retained’ and ‘appointed’ are past participles that take their tense from the surrounding present-tense verbs—and results in a nonsensical interpretation under which an attorney must be hired and only then (potentially minutes later) could become ‘specially retained’ as a special counsel. Finally, the district court erroneously treated two provisions, 28 U.S.C. §§ 519 and 543, which together clarify that the Attorney General’s supervision of all federal litigation encompasses U.S. Attorneys and any attorneys assisting them—as a limit on the entirely independent authority under Section 515 for an Attorney General to appoint a special counsel to assist him.
2. Congress also authorized the Attorney General to appoint special counsels in 28 U.S.C. § 533(1), which provides that he may appoint “officials” to ‘detect and prosecute crimes against the United States.’ The district court found Section 533(1) inapplicable on the theory that ‘official’ means only ‘nonofficer employee.’ The ordinary meaning of the term ‘official,’ however, naturally encompasses ‘officers,’ and as used in Section 533(1), reaches both employees and officers …
3. Two other provisions, 28 U.S.C. §§ 509 and 510, which grant the Attorney General broad power to operate the Department of Justice, also authorize him to appoint the Special Counsel in this case … And Congress has long used similar provisions to authorize other department heads, such as the Secretaries of Defense, State, Treasury, and Labor to appoint inferior officers to carry out critical work.
C. The long history of Attorney General appointments of special counsels confirms the lawfulness of the Special Counsel’s appointment … Attorneys General have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis … The district court erroneously disregarded this history as ‘spotty’ or ‘ad hoc,’ giving undue emphasis to superficial differences in the appointment and roles of certain special and independent counsels. The district court’s rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch. (Emphasis added.)
Smith argues:
The only question presented here is whether Congress has vested the Attorney General, by law, with the power to make the appointment. The Supreme Court squarely answered that question in United States v. Nixon, 418 U.S. 683, 694 (1974), holding that the Attorney General has statutory authority under 28 U.S.C. §§ 509, 510, 515, and 533 to appoint a special prosecutor comparable to the Special Counsel. Id. at 694-95. Statutory text, context, and history confirm that Nixon was correct …
A. The Supreme Court’s Decision in United States v. Nixon Establishes the Attorney General’s Appointment Authority “Vertical stare decisis—both in letter and in spirit—is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’ … Where, as here, the Supreme Court has expressly addressed an issue, lower courts are bound to follow it. The district court’s treatment of Nixon departed from that foundational principle. (Emphasis added.)
Not dicta, Smith explains, but a clear decision. And because the Appeals Court is certainly aware, he quotes from Nixon for Judge Cannon’s benefit:
Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.
Smith explains further:
The district court erroneously determined (Dkt. 672 at 53-64) that Nixon’s reliance on the cited statutory provisions as authorizing the Attorney General to appoint “subordinate officers,” such as the Special Prosecutor, was dicta. Nixon necessarily evaluated the Attorney General’s appointment power because the Special Prosecutor could not assert the Attorney General’s authority ‘to conduct the criminal litigation of the United States Government’ and the ‘explicit power to contest the invocation of executive privilege’ unless the prosecutor had been properly appointed … The Court’s conclusion that statutory authority supported the appointment was not merely a ‘prefatory, stage-setting paragraph’ that ‘served to tee up the case-or-controversy analysis that followed,’ Dkt. 672 at 62, but was instead central to its conclusion that ‘[s]o long as this regulation [conferring authority on the Special Prosecutor] is extant it has the force of law.’ Nixon, 418 U.S. at 695. That conclusion undergirded the Court’s determination that a justiciable case existed between an ‘independent Special Prosecutor with his asserted need for the subpoenaed material’ and a ‘President with his steadfast assertion of privilege against disclosure.’ Id. at 697 … Because that statutory analysis was a ‘necessary step’ to the Supreme Court’s ‘ultimate conclusions,’ it is therefore an ‘authoritative’ holding of the Court, not dicta …
The district court’s supposition that Nixon’s appointment discussion was dicta because the issue was not presented or contested is likewise flawed. Dkt.672 at 59-62. Both President Nixon’s justiciability challenge and the question presented in the Special Prosecutor’s certiorari petition (whether the President ‘is subject’ to a subpoena issued by the Special Prosecutor, see Dkt. 672 at 60), necessarily required the Court to determine whether the Attorney General had a lawful basis to appoint the Special Prosecutor. …
Even if the relevant language from Nixon were dicta, the district court was not entitled to cast aside carefully considered, unequivocal language from a unanimous Supreme Court … In sum, the district court erred in failing to treat Nixon’s conclusion—that Congress has authorized the Attorney General to appoint special counsels—as controlling. That conclusion was a binding holding, or, at least, authoritative dictum. Either way, Nixon conclusively defeats the defendants’ challenge to the Special Counsel’s appointment, as every other court to have considered the issue has found. (Emphasis added.)
Smith reminds the Court:
The Long History of Appointments of Special Counsels Reflects the Attorney General’s Authority to Make the Appointment Here: For more than 150 years, Attorneys General have appointed special counsels to investigate and prosecute some of the nation’s most consequential cases. This ‘deeply rooted tradition of appointing an outside prosecutor to run particular federal investigations,’ Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2142-43 (1998), further confirms the lawfulness of the Special Counsel’s appointment.
1. Attorneys General appointed special counsels even before the creation of the Department of Justice. In 1857, the Attorney General appointed Edwin Stanton as special counsel to prosecute a land-fraud claim in California …
Smith then refers to Congressional language and court decisions from 1870, 1897, 1898, 1906 etc.:
On the rare occasion when a court raised doubts about the authority of these special counsels, Congress quickly intervened. In Rosenthal, for example, the court dismissed the indictment, holding that a special assistant to the Attorney General could not conduct grand jury proceedings. 121 F. at 868 … Congress responded in 1906 with a law whose ‘express purpose . . . was to overrule the broad holding in Rosenthal,’ explicitly giving ‘specially-retained outside counsel’ all of the powers of a U.S. Attorney … That law—the predecessor to Section 515(a)—confirmed that ‘any attorney or counselor specially appointed by the Attorney-General’ was authorized to ‘conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings,’ which could otherwise be conducted by U.S. District Attorneys. Pub. L No. 59-404, 34 Stat. 816 (1906). As the House Report explained, ‘[t]here can be no doubt of the advisability of permitting the Attorney-General to employ special counsel in special cases’; such appointments had ‘been the practice to do so in the past,’ and ‘it will be necessary that this practice shall continue in the future.’ H.R. Rep. No. 59-2901, at 2 (1906).
Smith also makes the important point that Cannon’s reasoning contradicts the way significant other heads of departments function in our government:
Congress has long used similar statutes to vest the power to appoint inferior officers in other department heads, including the Secretaries of Defense, State, Treasury, and Labor. See 10 U.S.C. § 113(b), (d) (Department of Defense); 22 U.S.C. § 2651a(a)(3), (4) (Department of State); 31 U.S.C. § 321(b)(2) (Department of the Treasury); Reorganization Plan No. 6 of 1950, Pub. L. No. 81-921, 64 Stat. 1263 (1950) (Department of Labor). And the heads of these departments have relied on such statutes to appoint hundreds of inferior officers. See, e.g., Treasury Order 101-06 …
Ultimately, Congress has broad discretion to decide not only whether to vest department heads with appointment authority, but also how to do so, and it has exercised that discretion in various ways over time. See Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of Health & Hum. Servs., 80 F.3d 796, 804-05 (3d Cir. 1996). The district court erred by focusing only on the statutes that follow one particular pattern, while failing to acknowledge the vesting-and-delegation pattern that Congress has used to grant appointment power to the heads of some of the oldest and largest departments in the Executive Branch.
The sole question this case presents is whether Congress has by law authorized the Attorney General to appoint the Special Counsel. Congress has done so in Sections 509, 510, 515, and 533, and the district court was wrong to view that straightforward question of statutory construction as implicating concerns about ‘structural liberty,’ ‘structural integrity,’ ‘democratic accountability,’ or ‘usurpation . . . ‘by indirection.’ See, e.g., Dkt. 672 at 3, 15, 16. Congress is free to vest a department head with the power to appoint inferior officers based on its assessment of ‘administrative convenience.’ Edmond, 520 U.S. at 660. Where, as here, Congress does so, it fully satisfies the Appointments Clause. …
In the district court’s view (Dkt. 672 at 36-41), however, this history presents nothing more than a ‘spotty’ picture of ‘an ad hoc, inconsistent practice’ that ‘makes it near impossible to draw any meaningful conclusions about Congress’s approval of modern special counsels like Special Counsel Smith.’ Id. at 36-41. To reach that conclusion, the district court attached undue weight to several superficial variations in historical practice that shed no light on the question at hand.
To begin, the district court erroneously relied on variations in the mechanism by which special counsels have been appointed, emphasizing (Dkt.672 at 36-38) that (1) not every special counsel in history has been appointed by the Attorney General, and (2) not every Attorney General who appointed a special counsel explicitly relied on Section 515. But the question is not whether Attorneys General ‘were solely and exclusively responsible for the act of appointment.’ Id. at 37 The question is whether Congress has vested Attorneys General with the power of appointment; the fact that the President has, at times, also exercised appointment power, and that on one occasion the President’s selections were made subject to Senate confirmation, sheds no light on the Attorney General’s power. Nor is it significant that Attorneys General have cited different statutory provisions when appointing a special counsel. Sections 515, 533, and 509/510 each independently authorize the Attorney General to appoint a special counsel, and the fact that the Attorneys General have cited different statutes at different times supports, rather than undermines, their authority to do so.
The district court also attached undue weight to the fact that some special counsels have been appointed from within the Department, while others have been appointed from outside the Department. See Dkt. 672 at 38-39. The district court erroneously derived that distinction from Section 515(b)’s use of the past participle ‘retained,’ while offering no theory for why Congress would have built such a distinction into the statute. The district court compounded its error by fundamentally mischaracterizing the Special Counsel’s role. According to the district court, ‘Mr. Smith is a private citizen exercising the full power of a United States Attorney.’ Id. at 41. But he is not a private citizen: he is a sworn officer of the Department of Justice. There was a period in American history when ‘private citizens’ prosecuted some of the most consequential cases of the day, such as the prosecution of Jefferson Davis. But that has not been the practice for more than 150 years. And to the extent the district court used the term ‘private citizen’ to refer to someone who was not already a member of the Department of Justice before receiving his commission, that definition applies equally to every member of the Department and has no relevance to the Appointments Clause or to the statutes authorizing the appointment of Special Counsel Smith.
The district court likewise attached undue weight to variations in the degree of independence granted to special counsels, emphasizing (Dkt. 672 at 39) that not all ‘have operated with the same degree of power and autonomy as Special Counsel Smith.’ Congress has granted the Attorney General not only the power to appoint special counsels, but discretion to determine how much independence to give them. See 28 U.S.C. §§ 510, 515. In some cases, the Attorney General might direct a special counsel to play a relatively minor role. But in other cases, he might direct a special counsel to oversee an entire investigation and prosecution, subject to greater or lesser oversight by the Attorney General as his judgment dictates.
Indeed, the latter model has been the norm for the half century since Watergate, and it goes back further still. For example, when Attorney General Knox appointed Francis Heney as a special assistant in 1909 to investigate the land fraud cases in Oregon, the local District Attorney initially ‘regarded [Heney] as an assistant,’ but Knox clarified that Heney was ‘to be in full charge,’ telling the District Attorney that Heney ‘was to be obeyed as the Attorney-General himself would be obeyed.’ … (Emphasis added.)
Again, Smith highlights the dire consequence to the way our government functions if her judgment prevails:
3. The district court’s reasoning also needlessly casts doubt on longstanding practices in the Department of Justice and across the Executive Branch. It suggests that every special counsel throughout history who was appointed from outside the Department of Justice and who did not assist a U.S. Attorney was invalidly appointed; that every Attorney General who made such appointments acted ultra vires; that Congress repeatedly overlooked the persistent pattern of errors; and that the Supreme Court itself failed to spot that flaw in Nixon. But it also goes much further. If the Attorney General lacks the power to appoint inferior officers, that conclusion would invalidate the appointment of every member of the Department who exercises significant authority and occupies a continuing office, other than the few that are specifically identified by statute. See supra at 38-39. At a minimum, that list includes high-ranking Department positions such as the Deputy Solicitors General and the Deputy Assistant Attorneys General. The district court’s rationale would likewise raise questions about hundreds of appointments throughout the Executive Branch, including in the Departments of Defense, State, Treasury, and Labor, which all rely on statutes resembling Sections 509 and 510 to support their Secretary’s authority to appoint inferior officers. See supra at 39-40. The implausibility of that outcome underscores why the district court’s novel conclusions lack merit.
Smith makes short shrift of the funding argument and then concludes:
Something tells me Judge Aileen Cannon won’t be appreciative of the extensive schooling offered her by Special Counsel Jack Smith. But she ought to be. Her errors and misinterpretations of both federal law and one of the most significant Supreme Court decisions were egregious and especially dangerous.
At the very least, the Court of Appeals for the Eleventh Circuit should reverse her order. I, for one, would make her write an apology for wasting our time and needlessly threatening the republic, remove her from the bench, then send her back to law school. In the meantime, I/we owe so many thanks to Special Counsel Jack Smith.
