Days before Attorney General Merrick Garland appointed special counsel Jack Smith to investigate former President Donald Trump, experts who had been following the Justice Department investigations questioned its necessity. Mr. Smith was appointed on Nov. 18, 2022.
Would the appointment of an “independent” lead prosecutor undermine the Justice Department’s own appearance of independence from politics? Would the newly appointed prosecutor slow the case down?
Those concerns have now materialized, though not for the predicted reasons.
On June 22, U.S. District Court Judge Aileen Cannon will hear arguments on a motion to dismiss the classified documents case against President Trump based on the unlawful appointment of the special counsel. Experts who advanced this legal theory have told The Epoch Times they plan to participate as amici curiae, or friends of the court.
What Are Special Counsels For?
Attorneys general have been hiring special counsels since before the Justice Department was established in 1870, via a statute that specifically set guardrails on the hiring and payment of outside attorneys as special counsel.
A century later, Congress decided, with the Watergate scandal, there was a need for a truly independent prosecutor to investigate senior executive branch personnel, including the president. In 1978 Congress passed an ethics bill that created the Office of Independent Counsel.
While controversial, the law was reformed and reauthorized more than once before Congress let it expire in 1999.
Just before it expired, the Justice Department under Attorney General Janet Reno created its own set of regulations for appointing a special counsel.
The department determined that attorneys general may appoint a special counsel if a case “would present a conflict of interest for the Department or other extraordinary circumstances,” instructing the attorney general to then select someone from “outside the United States Government.”
These past few years, the Justice Department has found plenty of “extraordinary circumstances.”
In 2017, acting Attorney General Rod Rosenstein appointed special counsel Robert Mueller to investigate Russian interference in the 2016 presidential election.
In 2020, Attorney General William Barr appointed special counsel John Durham to investigate whether federal personnel violated the law in investigating the 2016 presidential.
In 2022, Mr. Smith was appointed to investigate matters related to President Trump.
In 2023, special counsel Robert Hur was appointed to investigate the possible unauthorized removal of classified records at properties of President Joe Biden, and special counsel David Weiss was appointed to take on the ongoing investigation into first son Hunter Biden.
Experts Weigh In
When President Trump appealed his presidential immunity defense to the Supreme Court, former U.S. Attorney General Edwin Meese III was quick to submit an amicus brief arguing that before the case could proceed, the high court should settle the matter of whether a private citizen can lawfully be given the authority to impanel a grand jury, investigate, and prosecute a former president.
Mr. Meese, arguing together with constitutional law scholars and professors Steven Calabresi and Gary Lawson, holds the position that Mr. Garland had no authority to grant Mr. Smith such “extraordinary criminal law enforcement power,” as attorneys general lost that power in 1999.
Mr. Meese, incidentally, was himself investigated by an independent counsel when the law was still in effect. The professors are experts in this niche matter, and in 2019 authored a paper arguing that the appointment of special counsel Robert Mueller was unlawful for the same reasons.
The Appointments Clause of the Constitution states that the president has the authority to appoint a number of officers that courts have come to deem “principal” or “superior” officers, whose appointments have to be established by Congress through law, and have their appointments confirmed by the Senate. It also states that Congress can, through law, allow department heads to appoint “inferior” officers.
The amici argue Mr. Smith wields the power of a “principal or superior officer” without being appointed through the lawful process as required under the Appointments Clause.
The correct avenue would have been to appoint a currently serving U.S. Attorney as special counsel, or to appoint an outside special counsel that serves under a U.S. Attorney, Mr. Meese, Mr. Calabresi, and Mr. Lawson argue.
“Smith is the classic ‘emperor with no clothes,’” their Supreme Court brief reads.
Attorneys for President Trump in a second case picked up on this argument, filing a motion in the Southern District of Florida. They argued that Mr. Smith’s appointment violated the Appointments Clause, and there is no permanent funding allocated to a special counsel office, therefore the indictment should be dismissed.
Mr. Meese, Mr. Calabresi, and Mr. Lawson filed another amicus brief in support of the motion in this case, as did other experts.
In a separate amicus brief, professor Seth Barrett Tillman argued that not only is Mr. Smith not a principal or inferior officer, but he is right now really an “employee” of the Justice Department.
Mr. Tillman has written extensively on related issues, and argued that Supreme Court precedent shows that to be an officer of the United States requires that the position has permanency.
In a 1867 case, United States v. Hartwell, the Supreme Court defined the difference between a contract employee and officer. Justice Noah Swayne wrote that an office “embraces the ideas of tenure, duration, emolument, and duties.”
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