On November 18, 2022, Attorney General Merrick Garland purported to appoint private citizen Jack L. Smith to be a Special Counsel with the power of one of the 93 U.S. Attorneys but with nationwide jurisdiction. This makes Jack Smith more powerful than any of the 93 U.S. Attorneys even though they have been Senate-confirmed to their particular offices, and Jack Smith has not been Senate confirmed for the particular office, which he now claims to hold.
A close examination of the Justice Department’s (DOJ’s) organic statute makes it clear that, unlike at least four other Heads of Cabinet Departments, the Head of the Justice Department has not “in, the words of the Appointments Clause, been “by Law” *** vested” with the power to appoint inferior officers like Jack Smith who have more power than any of the 93 Senate-confirmed U.S. Attorneys. This is made clear by an examination of the DOJ’s organic statute, 28 U.S. C. Sections 509, 510, 515-519, 533, and, most importantly, Section 543.
This latter statute, 28 U.S.C. Section 543, explicitly allows the appointment by the Attorney General of a Special Counsel to assist a U.S. Attorney but not to replace him. Comparison of the DOJ’s organic statute with the organic statutes of at least four other Cabinet Departments illustrates the kind of clear laws by which Congress exercises its power “to by Law vest the Appointment of such inferior Officers, as they think proper, *** in the Heads of Departments.”
Since 1999, when the Independent Counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of private citizens as Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Unlike a U.S. Attorney, however, private citizen Jack Smith has not been nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds. This is blatantly unconstitutional and renders Jack Smith powerless to seek a writ of certiorari before judgment from the Supreme Court, as he is trying to do at the moment.
Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, were patently unlawful, for reasons set forth in great detail in: Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment is Unlawful, 95 Notre Dame Law Review 87 (2019). The same argument renders the appointment of private citizen Jack Smith to prosecute Donald Trump right now unconstitutional.
Private citizen Jack Smith, under the regulation, has all of the power of a U.S. Attorney, and also nationwide jurisdiction, but he was never nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds, in the way that U.S. Attorneys are nominated and confirmed for their particular offices. This is blatantly unconstitutional.
It is imperative that the Supreme Court rule on this question right now. I have co-written and co-signed an amicus brief with former Attorney General Ed Meese and Professor Gary Lawson, which was filed in the Supreme Court today in United States v. Trump, which is a petition for certiorari before judgment filed by private citizen Jack Smith purporting to speak for the government of the United States, and which is currently before the Supreme Court, and which makes the argument that Jack Smith’s appointment was unconstitutional.
My concern about the legality of Jack Smith’s appointment is both a concern that Trump’s convictions might eventually be overturned by the Supreme Court on appeal, because Jack Smith was unconstitutionally appointed, and a concern that even someone who has conducted himself, in the way that Donald Trump has done, must be tried in a constitutional way. The current Supreme Court has at least six justices who really care about the separation of powers and the Appointments Clause. They think about the Appointments Clause and the separation of powers, which it protects, in exactly the same way as I do, and not as the Burger Court did when it decided the erroneous precedent of United States v. Nixon, 418 U.S. 683 (1974). I think the Supreme Court, when it ultimately addresses these Appointment Clause issues will reach the same conclusion that former Attorney General Ed Meese, Professor Gary Lawson, and I have in the amicus brief, which we filed today in the Supreme Court. Jack Smith’s appointment to be Special Counsel was unconstitutional, and every action that he has taken since his appointment is now null and void.
The proper way in which an Attorney General should appoint a Special Counsel, like Jack Smith, is to ask one of the very best Senate-confirmed U.S. Attorneys now in office to prosecute the cases arising out of the events of January 6, 2021, or the misuse of classified documents case, to be Special Counsel allowing that U.S. Attorney to prosecute cases nationwide and not only in one of the 93 Districts each of which has its own Senate confirmed U.S. Attorney. At the same time the Attorney General should then, and could then, under 28 U.S.C Section 543 appoint Jack Smith to be the Special Counsel’s Special Assistant. The Appointments Clause of the Constitution is perfectly satisfied when someone exercises power as an officer whose character the Senate and the President have previously approved of and that is germane to that particular office. But, we do not want future U.S. Attorney Generals, such as the ones Donald Trump might appoint, if he is re-elected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith. Think of what that would have led to during the McCarthy era or in the Grant, Harding, Truman, or Nixon Administrations in all of which an Attorney General was corrupt.
It is irrelevant that Jack Smith was confirmed by the Senate to be the U.S. Attorney for the Middle District of Tennessee during the Trump Administration. At the time of his appointment to be Special Counsel on November 18, 2022, he was a war crimes prosecutor in the Hague employed by the government of Kosovo. The organic statutes governing the Justice Department allow the Attorney General great discretion in moving around on the DOJ chess board currently confirmed appointees.
There are four reasons why Jack Smith’s appointment as Special Counsel is unconstitutional. See Generally, Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87 (2019). First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ now that the Ethics in Government Act has sunsetted out of existence in 1999. There is also no statute that clearly vests in the Attorney General the power to appoint inferior officers at all. The amicus brief that was filed on my behalf today conducts what I think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and the lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels with the power of a Senate-confirmed United States Attorney. They authorize the creation and appointment of Special Counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels with nationwide jurisdiction and to independently prosecute high-level wrongdoing, but they do not authorize the creation of the kind of Special Counsels represented by Robert Mueller or Jack Smith who replace, rather than assist, United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the Special Counsel’s appointment.
This is important again because the requirement of presidential nomination and Senate confirmation keeps former Senators and presidential appointees from ever gaining the power to unilaterally make inferior appointments which could then unbalance any system of checks and balances.