On July 15, Judge Aileen Cannon held that Attorney General Merrick Garland lacked statutory authority to appoint Jack Smith as a Special Counsel to investigate and prosecute federal criminal charges against former President Donald Trump. On the basis of that holding, Judge Cannon granted Trump’s motion to dismiss the indictment against him in the case involving documents retained at Mar-a-Lago. The Department of Justice appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit, and filed its opening brief on August 26. On Friday, October 25, Trump’s attorneys filed their responsive brief in the court of appeals.
In an article here back in July, I explained why Judge Cannon is wrong and why the Supreme Court was correct to hold in United States v. Nixon (1974) that Congress has given the Attorney General statutory authority to create an “office” to handle a particular criminal case and to hire someone from outside the Department of Justice to direct that office and supervise the case.
Trump’s counsel argue in his appellate brief that (1) the Court in Nixon was wrong on the merits of the statutory authority question; and (2) what the Court unanimously wrote in Nixon about the statutory question was dicta, rather than a binding holding. Trump also argues that (3) even if there is statutory authority for such an appointment, such an appointment would be unconstitutional because Special Counsel Smith is a principal officer and therefore must be appointed by the President, by and with the advice and consent of the Senate.
In this article, I offer a few preliminary reactions to each of these three Trump arguments. (DOJ’s reply brief, currently due on November 15, presumably will include more comprehensive responses to all of Trump’s arguments.) After that, I address some of the additional arguments, not raised by Trump himself, that amici supporting Trump have made to the court of appeals. [To repeat my earlier disclosure: I was a Deputy Assistant Attorney General in the DOJ Office of Legal Counsel at the time of the Smith appointment. Nothing in this essay, however, reflects any confidential information from my tenure at OLC.]
Trump’s Arguments
1. The Attorney General’s Section 510 Authority to Delegate the AG’s Power to Supervise Criminal Cases
In my July piece, I explained that the most straightforward statutory basis for Attorney General Garland’s appointment of Jack Smith as Special Counsel is that (1) the Attorney General had statutory authority to hire Smith to work in the Department of Justice pursuant to 5 U.S.C. § 3101, and (2) the Attorney General also has authority, pursuant to 28 U.S.C. § 510, to delegate his own power to supervise a criminal case to anyone employed at DOJ.
I elaborated as follows on the second component of this statutory argument (i.e., the Attorney General’s delegation authority under Section 510):
Section 509 [of Title 28] provides that, with discrete exceptions not relevant here, “[a]ll” DOJ functions “are vested in the Attorney General,” even where another statute specifically assigns a particular function to other DOJ officials (such as 28 U.S.C. § 547(1), which authorizes U.S. Attorneys to prosecute offenses against the United States). Therefore, the Attorney General himself may supervise a criminal investigation and prosecution. This has been true since 1870, when Congress enacted the law establishing the Department of Justice. See Act of June 22, 1870, ch. 150, § 3, 16 Stat. 162, 163 (providing that “the Attorney-General may, whenever he deems it for the interest of the United States, conduct and argue any case in which the government is interested, in any court of the United States”).
Section 510, in turn, provides the Attorney General a virtually unlimited power to delegate those authorities. It provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” (Congress has vested the Attorney General with such a broad delegation power since at least 1950. See Reorganization Plan No. 2 of 1950, § 2, 64 Stat. 1261, 1261.) This means that the Attorney General may assign the functions of criminal investigation and prosecution of a particular case—powers he may personally exercise, per Section 509—to any other officer, employee, or agency of DOJ. For example, Section 510 would have authorized Attorney General Garland to assign supervision of the Mar-a-Lago investigation, and any subsequent prosecution, to an attorney employed in the Office of the Attorney General (OAG), or to an attorney in the Tax Division, or to an attorney in the Environment and Natural Resources Division, etc.
Of particular note with respect to the Mar-a-Lago case, for the past 17 years the Attorney General has exercised his Section 510 delegation authority to assign supervision of criminal investigations and prosecutions involving national-security-related offenses to the DOJ National Security Division (NSD), even though Congress has not vested the Assistant Attorney General for NSD with any statutory authority to prosecute criminal cases. See 28 U.S.C. § 507A(b) (setting forth the statutory functions of the NSD AAG). In 2007, Attorney General Alberto Gonzales promulgated a regulation, 28 C.F.R. § 0.72(a)(7), conferring upon NSD the power to “[p]rosecute Federal crimes involving national security.” 72 Fed. Reg. 10,064, 10,066 (Mar. 7, 2007). Not surprisingly, Attorney General Gonzales cited Sections 509 and 510 as authority for that regulatory conferral of prosecutorial power to NSD (together with 5 U.S.C. § 301, which vests the head of every Executive department with authority to “prescribe regulations for the government of his department [and] the distribution and performance of its business”). Id. at 10,065. What’s more, Section 9-90.010(A) of the DOJ Justice Manual prescribes NSD control of such cases as the default rule: “The enforcement of all criminal laws affecting, involving or relating to the national security, and the responsibility for prosecuting criminal offenses, such as conspiracy, perjury and false statements, arising out of offenses related to national security, is assigned to the Assistant Attorney General (AAG) of the National Security Division. Where a matter affects the national security, regardless of the specific statute(s) implicated, prosecutions shall be instituted and conducted under the supervision of the Assistant Attorney General, National Security Division, or higher authority.” (Emphasis added.) (Although NSD often prosecutes such cases in conjunction with a U.S. Attorney’s office, it need not do so, and my understanding is that NSD regularly supervises such prosecutions even when there is some involvement by attorneys in a U.S. Attorney’s office.)
Accordingly, before Attorney General Garland appointed a Special Counsel in November 2022, the Mar-a-Lago investigation and litigation itself were “instituted and conducted under the supervision of” NSD Assistant Attorney General Matt Olsen, rather than by a U.S. Attorney. Such NSD direction of the case was the result of an Attorney General delegation of his own authority to NSD pursuant to Section 510.
I also noted that Judge Cannon appeared to agree that Attorney General Garland could have first hired Jack Smith to work in a DOJ component—the Office of the Attorney General, for example, or NSD—and then, five minutes later, used his authority under Section 510 to delegate to Smith the responsibility to supervise the Mar-a-Lago case.
Judge Cannon nevertheless held that Section 510 was inadequate support for the Smith appointment because Attorney General Garland appointed Smith as Special Counsel without a separate, antecedent process of hiring Smith to work at DOJ. Judge Cannon appears to have assumed—and predicated her conclusion on the assumption—that Congress has insisted upon some temporal separation, no matter how brief, between the act of hiring an individual into DOJ and the Attorney General’s authorization of that DOJ official to supervise a prosecution.
Similarly, Trump argues in his appellate brief (pp. 36-37) that Section 510 only “authorizes the AG to delegate ‘any’ of his functions to existing ‘other officer[s]’ and ‘employee[s]’” (emphasis in Trump brief)—and that because Smith had not previously been employed at DOJ when Garland appointed him as Special Counsel on November 18, 2022, Section 510 is inapplicable.
As I explained back in July, however, that distinction is untenable:
There is … no basis for assuming Congress has required such a two-step dance. Indeed, there would be no reason for Congress to have imposed such a requirement, which would serve no useful purpose and that would have contravened a longstanding practice of hiring individuals from outside DOJ to commence employment at DOJ in order to handle a particular case. Section 510 empowers the Attorney General to delegate his functions—including criminal-law investigation and prosecution—to an incoming DOJ employee who has been hired [from outside the Department] for the specific purpose of exercising that delegated authority.
In response to this argument, Trump asserts (p.37) that the Attorney General is not free to hire someone “as a non-officer employee under 5 U.S.C. § 3101, and then elevate him to inferior-officer status.” There are at least two problems with this response, however.
First, although Section 3101 authorizes “[e]ach Executive agency” to “employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year” (emphasis added), for purposes of that provision the term “employee” is defined to include officers (see 5 U.S.C. § 2105(a)). Thus, Section 3101 authorizes the hiring of persons as officers in the first instance, even where the Head of the Department, rather than Congress, has created the office in question. See Edmond v. United States, 520 U.S. 651, 656-68 (1997) (holding that a statute giving the Secretary of Transportation the power to “appoint and fix the pay of officers and employees of the Department of Transportation and [to] prescribe their duties and powers” authorized the Secretary to appoint civilians from outside DOT to serve as judges on the Coast Guard Court of Criminal Appeals—judges who are “officers” for Appointments Clause purposes—even though “the statute does not specifically mention Coast Guard judges”).
Moreover, as DOJ’s opening brief explains at greater length (pp. 36-41, 56), such appointments of persons previously outside the government to offices within the Department are regularly made in DOJ, just as they are in many other agencies. Of greatest significance here, Attorneys General have often hired persons directly into DOJ as “special counsel” or “special prosecutors” assigned to investigate and prosecute particular possible federal offenses.
Most famously, in 1973 Attorney General Elliot Richardson, citing Sections 509 and 510, formally established within the Department of Justice “the Office of Watergate Special Prosecution Force, to be headed by a Director,” 38 Fed. Reg. 14,688 (1973), and—once again relying upon Sections 509 and 510—appointed Archibald Cox to be the Director of that Office. In October 1973, Acting Attorney General Robert Bork formally abolished the office and removed Cox in the so-called “Saturday Night Massacre,” but then, less than two weeks later, Bork reestablished the office, once again citing Sections 509 and 510 as his authority to do so, see 38 Fed. Reg. 30,738 (Nov. 2, 1973), and appointed Leon Jaworski to fill it, id. In the period that followed leading up to President Nixon’s resignation, there was a widespread understanding that Section 510 authorized the Attorney General to create that office and to appoint individuals from outside DOJ, such as Cox and Jaworski, to head it. See, e.g., Nader v. Bork, 366 F. Supp. 104, 108 & n.11 (D.D.C. 1973) (“The Attorney General derived his authority to hire Mr. Cox and to fix his term of service from various Acts of Congress.”) (citing Sections 509 and 510, along with 5 U.S.C. § 301); United States v. Mitchell, 377 F. Supp. 1326, 1329 n.7 (D.D.C. 1974) (stating, in a case in which counsel for seven defendants appeared, that “[f]ormer Special Prosecutor Archibald Cox received a delegation of powers and responsibilities from the Attorney General acting by authority of 28 U.S.C. §§ 509, 510 and 5 U.S.C. § 301”); Memorandum from Arnold & Porter (signed by Mitchell Rogovin and Simon Lazarus III) to John W. Gardner, Chairman of Common Cause (Oct. 29, 1973), published in Special Prosecutor and Watergate Grand Jury Legislation: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 1st Sess. 382, 392 (1973) (“The broad language of § 510 … gives ample support to the delegation by Attorney General Richardson of the very broad authority granted Special Prosecutor Cox.”). As far as I know, no one in any of the three branches of the federal government, and none of the Watergate defendants, challenged the Attorney General’s authority.
Subsequently, Attorneys General hired other “special” or “independent” counsels from outside DOJ to investigate and prosecute possible specified federal offenses—once again, without anyone raising any serious question about the authority to do so. Examples include the Attorney General’s appointments of Paul Curran in 1979, Jack Danforth in 1999, Robert Mueller in 2017, and Robert Hur in 2023.
Under Trump’s reading of Sections 3101 and 510, all of these appointments of individuals previously outside DOJ were unauthorized. Nor does Trump argue otherwise: He concededly is asking the court of appeals to hold that all of these historical appointments, including those of Cox and Jaworski, were unlawful—despite the fact that no one in any of the three branches (or the defense bar) raised any doubts about the Attorney General’s authority. Trump has not offered the court of appeals any basis to warrant a holding that would so dramatically and retroactively declare this well-established practice to have been unlawful.
Second, even in the hypothetical case described in Trump’s brief, where someone is first hired into DOJ as an employee (i.e., without the power to exercise significant government authority), Section 510 would still authorize the Attorney General to delegate his own power to supervise criminal cases to that individual, even if that delegation would effectively be an appointment of the individual to an “office” for Appointments Clause purposes. The words of Section 510 are crystal clear in this respect: It provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General” (emphasis added).
In sum, therefore, Section 510, together with the Attorney General’s undisputed authority to hire individuals to work at DOJ, is sufficient to settle the principal (statutory) question at issue on the appeal. (Accordingly, there is no need for the court of appeals to address the potentially more complicated questions raised by DOJ’s additional reliance upon 28 U.S.C. §§ 515(b) and 533 as authority for the appointment.)
2. The U.S. v. Nixon Precedent
Fifty years ago, in United States v. Nixon, Chief Justice Burger wrote for a unanimous Supreme Court that “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government [and] has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” 418 U.S. at 694 (citing 28 U.S.C. §§ 509, 510, 515 and 533). The Court continued: “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.” The Court added in footnote 8 that Acting Attorney General Bork had issued the regulation establishing the Office of Watergate Special Prosecution Force, and prescribing the Special Prosecutor’s authorities, “pursuant to his statutory authority.”
If these statements are binding precedent, then that’s all the court of appeals needs to say in order to reverse Judge Cannon’s ruling.
Understandably, then, Trump has little choice but to argue (pp. 52-53) that those statements in Nixon were nonprecedential dicta. His principal rationale for that view is that the Court adopted the statements from similar assertions in Special Prosecutor Jaworski’s own brief that “went unchallenged” by Nixon despite hundreds of pages of briefing and hours of oral argument.
I think the court of appeals is likely to agree with the U.S. Court of Appeals for the D.C. Circuit that those statements in Nixon were not dicta and that therefore Nixon governs the legal question here. See In re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019); accord United States v. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 622-23 (D.D.C. 2018) (Friedrich, J.).
But even if the court of appeals judges were to conclude that the statements in Nixon were dicta, the fact on which Trump now relies—namely, the failure of Nixon’s counsel to challenge the appointment authority over the course of hundreds of pages of briefing and hours of oral argument—merely demonstrates how untenable Trump’s argument is. Not only did Nixon’s savvy counsel not challenge the Attorney General’s appointment authority, neither did any Justice on the Supreme Court; nor any public commentators; nor the lower court judges who referenced the Section 510 authority (see above); nor any of the Watergate defendants who had been indicted by Jaworski and who thus had great incentive to challenge his appointment. This collective silence—the packs of dogs that didn’t bark—is itself a compelling confirmation of the fact that Congress has, beyond cavil, conferred such appointment authority on the Attorney General. As I wrote in my earlier piece:
Nixon was represented by James St. Clair, Charles Alan Wright, Leonard Garment, and other savvy, experienced counsel. Those esteemed attorneys offered numerous arguments on Nixon’s behalf in their zealous effort to challenge the tapes subpoena. Had there been a respectable argument that Acting Attorney General Bork had acted without statutory authority in appointing Jaworski, they certainly would have made it. (And others in the legal community would have flagged it.) Yet they did not. To the contrary, after Jaworski had expressly cited §§ 509, 510, 515 and 533 in his brief as the grounds for Acting Attorney General Bork’s authority to appoint a Special Prosecutor, Nixon’s counsel wrote in their reply brief (pp. 7-8) that “[w]e do not contest the Special Prosecutor’s assertion that his authority is derived from the Attorney General” (emphasis added). In other words, Nixon’s savvy counsel acknowledged that the Acting Attorney General had delegated his own authority to Jaworski—something Section 510 plainly authorized—and that therefore Jaworski was (in the words of the reply brief) “the alter ego of the Attorney General” in the “particular matter.” Nor was this simply a throwaway point: St. Clair, et al., insisted upon it because it was central to their (unsuccessful) argument that because the Attorney General allegedly lacked the authority to seek the subpoena, therefore his delegee, Jaworski, could not do so, either.
The most important point about the Nixon decision, therefore, is not that the pertinent passages in the Court’s opinion are binding on lower courts (though they are), but that Nixon himself, as well as his experienced counsel, and all eight Justices on the Supreme Court who participated, unanimously agreed with Jaworski that Section 510 and other statutes gave the Attorney General authority to delegate his own criminal law-enforcement authorities to a prosecutor hired from outside the Department of Justice (and to afford that prosecutor even greater independence from the Attorney General’s control than Jack Smith has in the Mar-a-Lago case).
The consensus understanding of the Attorney General’s statutory authority in the Nixon case was uncontested because it was incontestable. It has persisted for half a century. Actors in all three branches have relied upon it—and never questioned it—ever since.
3. Is Smith a Principal Officer?
In Part II of his brief (pp. 63-66), Trump argues that even if the Attorney General did have statutory authority to appoint Jack Smith as Special Counsel, that appointment would be unconstitutional because Smith is a principal officer and therefore must (according to the Appointments Clause of Article II) be appointed by the President, by and with the advice and consent of the Senate. (Judge Cannon’s dismissal of the indictment was not based on that constitutional argument.[1] “For purposes of this Order,” she wrote (p.2), “the Court accepts the Special Counsel’s contested view that he qualifies as an ‘inferior Officer.’”)
As far as the appeal to the Eleventh Circuit is concerned, this question is settled by Morrison v. Olson (1988). In Morrison, the Supreme Court held, 7-1, that independent counsel Alexia Morrison was an inferior officer for purposes of the Appointments Clause, despite the fact that her independence from control by the Attorney General was secured by statute (not, as with Jack Smith, merely by regulation) and was considerably more robust than the independence Smith enjoys. The Court held that Morrison “clearly falls on the ‘inferior officer’ side of th[e] line,” even though she was not “subordinate” to the Attorney General (and the President) “insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act.” 487 U.S. at 671.
Although his brief does not say it in so many words, Trump effectively concedes that Morrison is controlling on his Appointments Clause argument. He therefore argues, implicitly, that the Supreme Court should overrule Morrison. For reasons I explained in far greater detail in an essay here in 2018, I think that prognostications of Morrison’s imminent demise are overstated—particularly on the question of what constitutes a “principal officer” for Appointments Clause purposes. Whether I’m right about that or not (and whether or not the Morrison question is affected by the recent Trump v. United States decision), the pertinent point for purposes of the appeal is that Morrison is binding on the Eleventh Circuit on the question of whether Smith is a principal officer.
Three other quick points with respect to Trump’s “principal officer” argument:
First, adopting this argument would mean not only that the appointments of all the independent prosecutors under the Ethics in Government Act (such as Alexia Morrison and Ken Starr) were unconstitutional, but also that the Cox and Jaworski appointments were unconstitutional—an argument no one in the Nixon proceedings (including the many criminal defendants there) advanced.
Second, in support of his argument, Trump contends (pp. 61-62) that because the DOJ Special Counsel Regulations afford Smith “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney,” 28 C.F.R. § 600.6, that must make Smith a principal officer because such U.S. Attorneys are themselves principal officers.
The premise of that argument is mistaken. Because Congress has given the Attorney General pervasive control over U.S. Attorneys, including the power to control all litigation in their districts, 28 U.S.C. §§ 509, 519, and to replace a United States Attorney in conducting or arguing a particular case, id. § 518(b), U.S. Attorneys are themselves inferior officers. See United States v. Hilario, 218 F.3d 19, 24-26 (1st Cir. 2000); United States v. Gantt, 194 F.3d 987, 999-1000 (9th Cir. 1999); 2 Op. O.L.C. 58, 59 (1978) (explaining that even though Congress has never “exercised its discretionary power to vest the appointment of U.S. Attorneys in the Attorney General,” a legislative proposal to allow the Attorney General to appoint and remove United States Attorneys was constitutional because U.S. Attorneys “can be considered to be inferior officers”); see also Myers v. United States, 272 U.S. 52, 159 (1926) (stating in a dictum that a United States attorney is “an inferior officer”). Congress has the same understanding: For more than 150 years it has provided that, where the office is vacant, a district court may under certain circumstances appoint a United States Attorney to serve until the vacancy is filled. See 28 U.S.C. § 546(d). Such appointments by a “court of law” comply with the Appointments Clause because the U.S. Attorney is an inferior officer. See Hilario; Gantt.
Finally, even if the court of appeals were to disregard the controlling Morrison decision, the Special Counsel would (at most) be an inferior officer under the Supreme Court’s other Appointments Clause precedents, such as Edmond v. United States (1997) and United States v. Arthrex, Inc. (2021). That is so because the Attorney General may preclude Smith from taking “any investigative or prosecutorial step” where it “is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” 28 C.F.R. § 600.7(b), and also because the Attorney General can diminish or eliminate the Special Counsel’s independence by amending or repealing the Special Counsel regulations, see In re Grand Jury Investigation, 916 F.3d 1047, 1052-53 (D.C. Cir. 2019).
* * * *
Amici’s Arguments
Several amici have filed briefs on Trump’s behalf in the court of appeals. Some of their arguments track Trump’s, but they have also raised a number of arguments that go beyond anything Judge Cannon and Trump have argued. The court of appeals is unlikely to embrace (or even entertain) any of these arguments. In an abundance of caution, however, here are a few reasons why five of those amicus arguments are mistaken. The first three of these five arguments are statutory in nature; the final two raise constitutional objections.
1. Delegation to a Private Prosecutor?
The State of Texas dedicates a good portion of its amicus brief to arguing that Congress has not authorized the Attorney General to delegate the control of criminal prosecutions to a private party. With respect to the key Section 510, in particular, Texas writes (p.13) that that provision “is most noteworthy for what it is not: An authorization for the Attorney General to delegate the awesome power to lead prosecution of federal crimes to someone outside the Department of Justice. … [Section] 510 merely allows the Attorney General to assign portions of his power to his subordinates.” (Emphasis in Texas brief.) See also id. at 6 (“[I]t is extraordinary to suppose that Congress empowered the Attorney General to appoint a private attorney to lead (rather than simply assist) a significant multi-district investigation and prosecution on behalf of the United States.“); id. at 2 (“a private individual has spent more than a year and well over $30 million that Congress appropriated for the Department of Justice to investigate a former President of the United States based on a permission slip from the Attorney General”).
This argument rests on a mistaken premise. Special Counsel Smith is not a private party. As the Special Counsel regulations recognize, he is employed by the Department of Justice. See 28 C.F.R. 600.3(b) (“A Special Counsel shall be appointed as a ‘confidential employee’ as defined in 5 U.S.C. 7511(b)(2)(C).”); see also id. 600.9(c) (“All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.”); 64 Fed. Reg. 37,038, 37,041 (“The provisions of Part 600 relate to the Attorney General’s appointment of a Special Counsel as an employee of the Department of Justice.”). Indeed, if Smith were not a DOJ employee—if he were, for instance, a contractor—then he would not hold a ”continuing position” in the U.S. government, in which case DOJ would not be taking the view that he is an officer for Appointments Clause purposes.
Therefore, even on Texas’s own view of Section 510, that statute empowered the Attorney General to delegate to Smith the AG’s authority to superintend the Mar-a-Lago prosecution.
2. Authority to Create the Office?
Two amicus briefs—one filed by America’s Future and other groups, the other by former Attorneys General Meese and Mukasey, Professors Calabresi and Lawson, and Citizens United—argue that, wholly apart from the Attorney General’s authority to fill an office, Congress has not authorized the Attorney General to establish an Office of Special Counsel in the first instance. (Trump’s own brief alludes to this argument on page 10, where it quotes Justice Thomas’s statement in his concurring opinion in the Trump immunity case (144 S. Ct. at 2350) that “[n]one of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.”)
I addressed this argument in my earlier essay. The following is derived from what I wrote there.
For starters, whether or not Congress has authorized the Attorney General to establish a continuing “Office of the Special Counsel”—a DOJ component that would continue to exist even if Jack Smith were to depart—should not matter for purposes of Trump’s motion to dismiss the indictment. Assume, for example (and for the sake of argument), the court of appeals were to conclude that although Attorney General Garland had authority under Section 510 to delegate the supervision of the Mar-a-Lago case to a DOJ employee (see above), he did not have authority to establish a distinct, continuing DOJ position of “Special Counsel for the Mar-a-Lago Case.” In that event, the court should simply construe the Attorney General’s November 2022 appointment memorandum, in accord with its plain language, to confer delegated authority upon Jack Smith, a newly hired DOJ employee, without establishing a new DOJ position the duties of which would “continue” even after “the person [in charge of the office] be changed.” Maurice, 26 F. Cas. at 1214 (Marshall, C.J., sitting as Circuit Justice). Under that construction, Smith would continue to have authority to handle the Mar-a-Lago case, and accordingly there would be no ground for dismissing the indictment.
In any event, the Attorney General does have statutory authority to create a new DOJ position that meets the conditions for an Appointments Clause “office.” Once again, the primary source of that authority is 28 U.S.C. § 510, which provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” This broad delegation authority, together with the general authority of the head of every Executive Department “to prescribe regulations for the government of his department [and] the distribution and performance of its business,” 5 U.S.C. § 301 (emphasis added), not only empowers the Attorney General to delegate the exercise of his authorities to another DOJ officer, employee, or agency of the DOJ in a discrete, particular case, but also to create continuing positions in DOJ that are to be filled by individuals whose duties are to exercise such delegated functions.
For example, in 1973, before Congress had created the U.S. Marshals Service, Attorney General Richard Kleindienst established an office of the “U.S. Marshals Service” within DOJ. Kleindienst appropriately cited, inter alia, Section 510 and Section 301, as the basis for the creation of that office because the persons occupying the office were assigned to perform functions delegated from (and by) the Attorney General. See 38 Fed. Reg. 12,917 (1973). Several years later, in referring to this Attorney General creation of the “Marshals Service,” the Office of Legal Counsel cited Section 510 in explaining that “Congress has by statute vested the Attorney General with the authority to take certain measures, including the creation of inferior offices within the Department of Justice, to carry out the functions of his office.” Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 286, 288 n.5 (1988) (emphasis added); see also, e.g., the examples cited in the U.S. Brief at 36-37.[2]
Of particular significance here, in several instances where the Attorney General has appointed “independent” or “special” counsels to handle a particular criminal investigation and possible prosecutions, the appointments followed (or were contemporaneous with) the express creation of an office itself.
- Most famously, on June 4, 1973, Attorney General Elliot Richardson, citing 28 U.S.C. §§ 509 and 510, and 5 U.S.C. § 301, formally established within the Department of Justice “the Office of Watergate Special Prosecution Force, to be headed by a Director.” 38 Fed. Reg. 14,688 (1973). Acting Attorney General Bork did likewise in November 1973, after he had abolished the first such office. See 38 Fed. Reg. 30,738 (Nov. 2, 1973).
- In 1987, there was ongoing litigation about whether the “independent counsel” provisions of the Ethics in Government Act of 1978 were constitutional, and the Reagan Administration was arguing to the courts that they were not constitutional (a view the Supreme Court eventually rejected in Morrison v. Olson). Therefore, in order to sustain the independence of the special prosecutor in the Iran/Contra investigation, Attorney General Edwin Meese established a regulatory “Office of Independent Counsel: Iran/Contra, to be headed by an Independent Counsel.” 52 Fed. Reg. 7270 (Mar. 10, 1987) (again citing 28 U.S.C. §§ 509, 510, and 515, and 5 U.S.C. § 301). Meese then appointed Lawrence Walsh to head that regulatory office. Several months later, in the course of adjudicating Oliver North’s challenge to Walsh’s authority, the U.S. Court of Appeals for the D.C. Circuit had “no difficulty concluding that the Attorney General possessed the statutory authority to create the Office of Independent Counsel: Iran/Contra and to convey to it the ‘investigative and prosecutorial functions and powers’ described in [AG regulations].” In re Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987) (emphasis added); see also id. at 55 n.29 (“Together, [Sections 509, 510 and 515] vest in the Attorney General the “investigative and prosecutorial functions and powers” described in the [Meese] regulation, … and authorize him to delegate such functions and powers to others within the Department of Justice.”); id. at 63 (Williams, J., concurring and dissenting) (“I concur in the court’s opinion insofar as it upholds the authority of Independent Counsel Walsh and his subordinates under the Attorney General’s regulations creating ‘Independent Counsel: Iran/Contra’”).
- The following year, Attorney General Meese effectively established yet another DOJ office of a “special independent counsel,” this one to manage any future allegations of criminal conduct by members of Congress. 53 Fed. Reg. 31,322-23 (Aug. 18, 1988) (citing 28 U.S.C. §§ 509, 510, 515, 516, 517 and 519, and 5 U.S.C. §§ 301 and 3101). (Early in the George H.W. Bush Administration, Attorney General Thornburgh “suspended” the Meese regulation. 54 Fed. Reg. 15,752 (Apr. 19, 1989). As far as I know, the position remains “suspended” and no Attorney General has ever appointed a special, independent counsel to that office.)
- Finally, in 1994, during a period in which the independent counsel provisions of the Ethics in Government Act had lapsed, Attorney General Janet Reno promulgated regulations that effectively established an office of “the Independent Counsel: In re Madison Guaranty Savings & Loan Association,” again citing Section 510 and 301, among other authorities. 59 Fed. Reg. 5321, 5321-22 (Feb. 4, 1994).
If no statutes authorized the Attorney General to create continuing DOJ positions for the exercise of significant government functions, then all of these past actions by Attorneys General would have been unlawful (including the actions by amicus Meese, who is now arguing, in effect, that he acted unlawfully when he was Attorney General). But Sections 510 and 301 (at a minimum) do confer such authority, which is why this practice has, until recently, virtually never been questioned by anyone in any of the three branches, or by defense counsel on behalf of clients prosecuted by individuals appointed to head offices created by the Attorney General.
3. Appropriations for a Special Counsel Investigation
Trump argued in the district court that Congress has not appropriated funds to subsidize the Special Counsel’s investigation. In response, DOJ relies upon Congress’ 1987 enactment of a “permanent indefinite appropriation” to “pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law.” Pub. L. No. 100-202, tit. II, § 101(a), 101 Stat. 1329, 1329-9 (1987) (28 U.S.C. § 591 note).
Amici Robert Ray, Seth Barrett Tillman and Landmark Legal Foundation argue (p.18) that this appropriation cannot be used to pay for Smith’s activities because it is limited to paying for investigations and prosecutions of “‘high ranking government officials,’” and Trump wasn’t a government official during the conduct in question and is not one now.
It’s understandable why Trump himself has not made this argument. The reference to “high ranking government officials” on which the Ray/Tillman/Landmark amici rely appears in a memorandum of the Government Accountability Office that addressed an investigation involving such officials. That memorandum did not state, nor suggest, that the appropriation could only be used where current government officials were the subjects of investigation. In any event, the language of the relevant statute (quoted above) contains no such limitation. This argument is frivolous.
4. What if Special Counsel Smith is Not an Officer for Appointments Clause Purposes?
The Ray/Tillman/Landmark amici also argue (pp. 22-32) that because Jack Smith does not hold a continuing position in the U.S. Government, he is not an “officer” for purposes of the Appointments Clause, and that therefore (according to amici) Smith cannot exercise the “significant authority” entrusted to him, including the power to seek indictments. Former Judge Alex Kozinski has filed an amicus brief making a similar argument.
These amici are correct that if someone does not occupy a “continuing position established by law” within the U.S. government, then that person is not an “officer” for Appointments Clause purposes, no matter how significant their functions might be, and therefore the Clause doesn’t constrain the manner in which such an individual may be selected. As Justice Elena Kagan put the point for the Supreme Court in Lucia v. FEC (2018), if the government actor does not satisfy the conditions for being an officer, “the Appointments Clause cares not a whit about who named them.”
Trump and DOJ have litigated the case on the shared assumption that the “continuing position” condition is satisfied here—i.e., that Attorney General Garland has effectively established an office of Special Counsel for the two Trump investigations—and that therefore Smith is an officer. (The DOJ Special Counsel regulations also assume that a Special Counsel will occupy an office. See 28 C.F.R. § 600.7(d) (“The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General.”)) The court of appeals almost certainly will not call that assumption into question—that is to say, the court will almost certainly agree that Smith is an officer for purposes of the Appointments Clause.
As it happens, I share amici’s doubts about whether Smith holds a continuing position for Appointments Clause purposes, for reasons I’ll relegate to a footnote here, if only because I’ve elaborated upon the question earlier and it’s unlikely to be contested in the Smith/Trump litigation.[3] Even so, amici are wrong about what would follow from that conclusion.
Indeed, amici’s argument is backwards: If Smith doesn’t occupy a continuing position, that would eliminate, not exacerbate, any constitutional concern. The purpose of the “continuing position” test, in conjunction with the “significant government authority” condition, is simply to assess whether the Appointments Clause limits how Congress may prescribe who may appoint the official. Contrary to what amici argue, there is nothing in the Constitution that requires holding a “continuing position” in the federal government in order to exercise significant government authority such as initiating a prosecution. And the Supreme Court has long recognized that non-officers may exercise such significant functions.
In the leading Auffmordt case, for example, 137 U.S. 310 (1890), the Court upheld import duties imposed by Edward Hedden, an independent contractor acting as a collector at the port of New York, even though he was not appointed in a manner prescribed by the Appointments Clause, because the Court found that Hedden didn’t hold a continuing position in the government. The fact that the Appointments Clause didn’t apply to Hedden because he was not an “officer” for purposes of that Clause did not mean that his exercise of significant government authority was invalid—to the contrary, the Court upheld the import duties he imposed upon Clement Auffmordt. Similarly, although qui tam relators and individuals acting as arbitrators in cases involving the government exercise significant authority under federal law, there is nothing constitutionally problematic about their doing so, even though they need not be chosen in conformity with the Appointments Clause because they do not satisfy the second criterion for being an “officer” (i.e., holding continuing positions in the government). See The Constitutional Separation of Powers Between the President and Congress. 20 Op. O.L.C. 124, 146 & n.65, 148-49 (1996); Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 114 (2007). There is no Supreme Court precedent to the contrary.[4]
5. A Violation of the President’s Article II Authority?
Florida, Iowa and 18 other States have filed a highly unusual amicus brief in which they argue that the Attorney General has impermissibly infringed the sitting President’s Article II authority to superintend the executive branch by affording the Special Counsel the forms of independence described in the DOJ Special Counsel regulations. (A similar Article II argument appears briefly in Part III of the amicus brief filed by America’s Future and several other organizations.)
I’m not sure I’ve ever seen an argument such as this one, alleging that one of the President’s own cabinet appointees, whom the President could remove at will, has violated the Constitution by making it more difficult for the President himself to control an executive function. The Florida amici acknowledge, as they must, that in Morrison v. Olson the Supreme Court held 7-1 that Congress can establish prosecutorial independence that has an even greater impact on the President’s control of criminal prosecutions. One might think that such an admission would settle the question because here there isn’t even a statute guaranteeing the Special Counsel’s independence. Nevertheless, the 20 state amici argue that the Attorney General cannot do what Congress can, even though the President obviously has far greater control over the Attorney General’s treatment of the Special Counsel than the President had when the Independent Counsel statute was in effect: President Biden, for example, could have directed the Attorney General not to appoint a Special Counsel, or to amend or repeal the independence provisions of the DOJ Special Counsel regulations.
I trust it’s easy to see why neither Trump himself nor Judge Cannon has suggested any such constitutional concern about an internal, voluntary Executive Branch limitation on presidential control over a particular criminal prosecution. For purposes of this essay, I’ll simply note that if the Florida amici were correct that the Smith appointment unconstitutionally limited the incumbent President’s authority, it would mean not only that the Cox, Jaworski, Curran, Danforth, Mueller and Hur appointments were unlawful, but that it was also unconstitutional for Attorneys General to confer guarantees of independence when appointing existing U.S. Attorneys, including Patrick Fitzgerald, John Durham and David Weiss, to be Special Counsels. For that and other reasons, this argument is (or at least ought to be) a nonstarter.
[1] Former Attorney General Edwin Meese and his fellow amici make a similar argument in Part II of their amicus brief. When Meese himself was the Attorney General in 1987, however, he appointed Lawrence Walsh as the head of the “Office of Independent Counsel: Iran/Contra” that Meese had established (52 Fed. Reg. 7270 (Mar. 10, 1987)—a position that afforded Walsh more independence than Jack Smith has. If Smith were a principal officer (as Meese now insists), then so was Walsh, in which case Meese would have acted unconstitutionally in appointing him.
[2] Attorneys General have twice appointed me to be a Deputy Assistant Attorney General in OLC, in which capacity I conveyed binding legal advice to executive branch actors, acting pursuant to delegated statutory authority belonging in the first instance to the Attorney General. See 28 U.S.C. 511, 512. Similarly, as Judge Sri Srinivasan explained during the 2018 oral argument in the case challenging the Mueller appointment, Attorney General Holder appointed Srinivasan himself, from outside DOJ, to be Principal Deputy Solicitor General in 2011. Similarly, in 1989, Attorney General Thornburgh appointed John G. Roberts, who had been employed at Hogan & Hartson, to be Principal Deputy Solicitor General. That officer typically signs briefs articulating the views of the United States in the Supreme Court when the Solicitor General is recused, as John Roberts did in, for example, the government’s brief in Metro Broadcasting v. FCC, asking the Court to declare certain federal statutes unconstitutional. If, as amici suggest, there were no statutory authority to establish such DOJ positions in the first instance, then the legality of such very common appointments would be called into question.
The Heads of other Departments use similar statutory authorities to create offices. See, e.g., Willy v. Admin. Rev. Bd., 423 F.3d 483, 491–92 (5th Cir. 2005) (“Even though we recognize that no specific federal statute creates the [DOL Administrative Review Board], … [t]he broad language employed by Congress in the Reorganization Plan No. 6 of 1950 [which, like DOJ’s Section 510, provides that ‘[t]he Secretary of Labor may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee, of the Department of Labor of any function of the Secretary’] and in 5 U.S.C. § 301 vests the Secretary with ample authority to create the ARB, appoint its members, and delegate final decision-making authority to them.”) (emphasis added).
[3] My doubts about whether the “continuing position” condition is satisfied are based upon a combination of three characteristics of the Attorney General’s appointment of Special Counsel Smith:
(i) The Attorney General hired the Special Counsel only to perform a discrete and limited task—Smith was “selected for the special case,” as an “expert assistant” to the Attorney General to help perform the Attorney General’s own, delegated statutory functions. Auffmordt v. Hedden, 137 U.S. 310, 326-27 (1890). Smith himself has “no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case.” at 327.
(ii) In contrast with some past instances where an Attorney General has appointed “special” or “independent” counsels (including the Watergate Special Prosecutors), Attorney General Garland did not separately establish an “Office.” He did not, for example, expressly create an “Office of Special Counsel for the Mar-a-Lago Investigation,” separate and apart from his selection of Jack Smith as Special Counsel. Thus, if Smith were to resign his post next week, it is not obvious that there would remain an “office” to be filled by another appointee—in which case the prosecution would simply revert back to the control of the National Security Division, absent further action by the Attorney General. In order to constitute an “office” for Appointments Clause purposes, “[t]he position’s existence should not be personal: The duties should ‘continue, though the person be changed.’” United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J., sitting as Circuit Justice). That appears not to be the case here.
(iii) Smith’s position and its duties are not “established by law” in the sense of being specified by or delineated in a statute. As I explained in 2018, the historical lessons are not uniform concerning whether a position established by regulation rather than directly by a statute can be an Appointments Clause “office.” At a minimum, however, there are some precedents suggesting that a position created pursuant to an Executive officer’s authority to delegate his or her own functions is not an “office” that requires compliance with the Appointments Clause. See, e.g.,United States v. Smith, 124 U.S. 525, 532 (1888) (holding that a clerk “discharging only such duties as may be assigned to him by [an] officer” is not himself an officer “charged by some act of Congress with duties”); Freytag v. Commissioner, 501 U.S. 868, 881 (1991) (distinguishing the office of trial judge, which was “established by Law” with its “duties, salary, and means of appointment … specified by statute,” from “special masters,” who courts hire “on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute,” and who are therefore mere employees who need not be appointed in conformity with the Appointments Clause).
I’ve argued in my previous posts that, whether or not any one of these characteristics standing alone would preclude a Special Counsel such as Jack Smith from satisfying the “continuing position” condition for being an officer, the three of them taken together point strongly against the conclusion that such a Special Counsel holds an “office” to which the Appointments Clause applies.
[4] Amici cite only the Court’s 1976 statement in Buckley v. Valeo that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.” 424 U.S. 1, 126 (per curiam). As the Court has made clear in cases both before and after Buckley, however, an appointee is an “officer” whose appointment must conform to the Appointments Clause only if the person both exercises significant authority pursuant to the laws of the United States and holds a continuing position in the U.S. government. See, e.g., Lucia, 585 U.S. at 245, 247, 254. Buckley merely “set out another requirement,” id. at 245, in addition to the “continuing position” requirement—namely, the “significant authority” condition for officer status. Nowhere in Buckley or any other decision has the Court held that only “officers” may exercise significant authority.