Fifty years ago today, the Supreme Court issued its landmark ruling in United States v. Nixon. Nixon involved the constitutionality of a subpoena for tapes that District Judge John Sirica issued to the sitting President at the behest of Leon Jaworski, a “special prosecutor” who had an unprecedented degree of independence from DOJ leadership (and from the President). Jaworski was appointed to his position by Acting Attorney General Robert Bork. (Indeed, Bork separately created the office that he appointed Jaworski to fill, as I explain below.) In the course of his opinion for a unanimous Court, Chief Justice Warren Burger held that Congress had vested the Attorney General with the power to make such a delegation of authority to the special prosecutor. United States v. Nixon, 418 U.S. 683, 694 & n.8 (1974). As I discuss at the end of this essay, that was not a controversial position at the time—indeed, even President Richard Nixon himself, represented by esteemed counsel, concurred that the Acting Attorney General had such statutory authority, and no one in Congress or the legal community (to my knowledge) suggested otherwise.
For almost a half-century thereafter, the Supreme Court’s conclusion about the Attorney General’s authority became common, uncontradicted wisdom. No one in any of the three branches of government ever questioned it, and Attorneys General repeatedly acted in accord with, and reliance upon, it.
Until last Monday. On July 15, U.S. District Judge Aileen Cannon concluded that the Supreme Court was wrong about the Attorney General’s authority. And on the basis of that holding, Judge Cannon granted former President Donald Trump’s motion to dismiss the indictment against him in the Mar-a-Lago retained-documents case.
This essay explains why the Supreme Court (and virtually everyone else for 50 years) was right about the Attorney General’s authority and why Judge Cannon therefore erred in dismissing the indictment. [Disclosure: I was a Deputy Assistant Attorney General in the DOJ Office of Legal Counsel at the time of the Attorney General’s appointment of Jack Smith as Special Counsel. Nothing in this essay, however, reflects any confidential information from my tenure at OLC.]
How the Question Arises in the Trump Case
When former President Trump announced in 2022 that he would run for another term as President, Attorney General Merrick Garland deemed it appropriate to appoint a special counsel to supervise two pending criminal investigations of Trump. See 28 C.F.R. 600.1 (requiring the Attorney General to appoint a Special Counsel “when he or she determines that criminal investigation of a person or matter is warranted and—(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter”). Accordingly, on November 18, 2022, Garland appointed Jack Smith—who before that day was not employed at the Department of Justice—“to serve as Special Counsel for the United States Department of Justice.” In his appointment memorandum, the Attorney General authorized Smith to, among other things, “conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021”; “conduct the ongoing investigation” in the Mar-a-Lago documents case; and “prosecute federal crimes arising from the investigation of these matters.” This assignment of authority transferred the supervision of the Mar-a-Lago case to the Special Counsel from the National Security Division within DOJ.
The Attorney General’s appointment memorandum specified that “Sections 600.4 to 600.10 of title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” The cited regulations are among those Attorney General Reno promulgated in 1999, which apply to a “Special Counsel” who is “selected from outside the United States Government.” 28 C.F.R. § 600.3(a). Those regulations provide (id. § 600.6) that such a Special Counsel “shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney” and “shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.” Although a Special Counsel such as Jack Smith is required to comply with DOJ’s rules, regulations, procedures, practices and policies, id. § 600.7(a), he is “not … subject to the day-to-day supervision of any official of the Department,” id. § 600.7(b).
Nevertheless, the Attorney General retains authority to substantially supervise and oversee the Special Counsel. The Attorney General may determine annually “whether the investigation should continue.” Id. § 600.8(a)(2). And he “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Id. § 600.7(b). Although the Attorney General must “give great weight to the views of the Special Counsel” in reviewing such an explanation, he might nonetheless “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” id., in which case the Attorney General may countermand Smith’s decision. Accordingly, as Attorney General Reno explained when she promulgated the regulations, the Attorney General has “ultimate responsibility for the matter and how it is handled.” 64 Fed. Reg. 37,038, 37,038 (July 9, 1999); see also id. at 37,040 (“notification of proposed indictments and other significant events in the course of the investigation, with the resulting opportunity for consultation, is a critical part of the mechanism through which the Attorney General can discharge his or her responsibilities with respect to the investigation”).
Trump moved to dismiss the Mar-a-Lago indictment on the ground that Special Counsel Smith lacks legal authority to prosecute the case. Judge Cannon ruled last Monday that Smith lacks such authority because Attorney General Garland himself did not have the power to confer such authority upon an individual who was not already employed at DOJ.
Trump’s motion and Judge Cannon’s opinion are styled as if the question is a constitutional one—namely, whether the Attorney General’s appointment of the Special Counsel “violate[d]” the Appointments Clause of the Constitution (Art. II, § 2, cl. 2). But as Judge Cannon herself acknowledged on page 3 of her opinion, in truth it’s not a constitutional question at all. The Appointments Clause provides that the Head of a Department, such as the Attorney General, may appoint what the Clause refers to as an “inferior” officer. Judge Cannon assumed, correctly, that the Special Counsel is an inferior officer, at least as a matter of governing precedent.[1]
Accordingly, even if we assume that Attorney General Garland appointed Smith to an “office” (but see my discussion below, suggesting to the contrary), the method of appointment here complied with the Appointments Clause.
If that’s the case, then what was the legal basis for Judge Cannon’s ruling? As Judge Cannon concedes, the determinative question is a statutory one—namely, whether Congress has conferred upon the Attorney General the power to hire someone previously employed outside DOJ to perform the investigatory and prosecutorial functions Garland has assigned to Smith. It’s common ground between the parties that if an Attorney General lacks statutory authority to authorize a Special Counsel to prosecute the case in the way the Smith appointment order contemplates, then that would resolve the legal question on statutory grounds (namely, that the Attorney General’s appointment order was ultra vires), regardless of the Appointments Clause. DOJ does not argue—no one does—that the Attorney General could have conferred that authority absent any statutory authority to do so. On the other hand, however, if the Attorney General has such statutory authority, then Garland’s November 2022 appointment and authorization to Jack Smith were constitutional.[2]
The Attorney General’s Statutory Authorities to Hire Individuals to Work at DOJ, to Exercise Prosecutorial Functions, and to Delegate Those Functions to DOJ Personnel
In order to properly examine the pertinent statutory question about Congress’s conferral of authority to the Attorney General, it is important to understand that, regardless of whether Attorney General Garland had statutory authority to create an office of Special Counsel for the Mar-a-Lago and January 6 cases—a question I address later in this essay—two other things are clear:
(i) The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice (which Trump does not contest); and
(ii) The Attorney General also had authority to assign the supervision of the two criminal cases to anyone working at DOJ.
Those two Attorney General authorities, together, are sufficient to resolve the question before Judge Cannon—namely, whether it is lawful for Jack Smith to supervise the Mar-a-Lago prosecution.
As for the first: The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice pursuant to 5 U.S.C. 3101 (affording each Executive agency the power to hire employees, defined to include officers, id. § 2105(a)). See also 28 U.S.C. §§ 503, 509 (designating the Attorney General “the head of the Department of Justice” and vesting the Attorney General with the authority to perform virtually all DOJ functions, which includes hiring). (At one point in her opinion (p.41), Judge Cannon described Smith as a “private citizen exercising the full power of a United States Attorney.” He is not: Jack Smith is employed by DOJ. Indeed, Attorney General Garland’s appointment memorandum specifies that Smith is “to serve as Special Counsel for the United States Department of Justice.”)
OK, but what about the second key proposition above—that the Attorney General has authority to assign the supervision of the two criminal cases to anyone working at DOJ? The basis for that conclusion is a combination of 28 U.S.C. §§ 509 and 510.
Section 509 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 DOJ. 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”).[3]
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.” See 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, the DOJ Justice Manual prescribes NSD control of such cases as the default rule. See United States Dep’t of Justice, Justice Manual § 9-90.010(A) (“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 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.
It follows that Attorney General Garland could have first hired Jack Smith to work in one of those DOJ components—in OAG, for example, or NSD—and then used his power under Section 510 to delegate to Smith the responsibility to supervise the Mar-a-Lago case.
Judge Cannon appears to concede this point on page 24 of her opinion; there, she writes that Section 510 “gives the Attorney General flexibility to authorize existing DOJ officers, employees, or agencies to perform the functions of the Attorney General, consistent with the nature of those functions” (emphasis in original). Indeed, throughout her opinion Judge Cannon appears to acknowledge (e.g., pp. 27, 29, 38) that Attorney General Garland could have assigned the authority in question to any “already-retained” DOJ attorney. If that is correct (and it is), then Attorney General Garland could have authorized Smith to handle the Mar-a-Lago case had he done so five minutes after hiring Smith to work at DOJ. Judge Cannon’s holding that Section 510 is inadequate in this case, then, appears to be premised upon her assumption that Congress has insisted upon some temporal separation, no matter how brief, between the act of hiring an individual and the act of authorizing that DOJ official to supervise a prosecution.
There is, however, 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 for the specific purpose of exercising that delegated authority. As noted below, that has happened quite frequently.
Sections 509 and 510 thus are sufficient to afford the Attorney General the authority to delegate the Attorney General’s own investigatory and prosecutorial functions to an attorney hired into DOJ for that purpose from outside the Department.
Section 515 of Title 28, which Judge Cannon discusses more extensively than Sections 509 and 510, is not necessary to establish this point—but it strongly confirms Congress’ understanding that “special” counsels can be hired into the Department specifically in order to investigate and prosecute an identified case.[4]
First, subsection 515(a) expressly establishes that such prosecutorial functions are not the exclusive province of U.S. Attorneys. It provides:
The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
In other words, even though criminal trials are proceedings that “United States attorneys are authorized by law to conduct,” the Attorney General himself may conduct such proceedings or “specifically direct” any DOJ officer or “or any attorney specially appointed by the Attorney General under law” to conduct them. That is why it is uncontroverted that the Attorney General can give NSD the authority to prosecute national-security-related cases—as Attorney General Gonzales did in 2007—even though the Assistant Attorney General for NSD, unlike a U.S. Attorney, has no express statutory authority to prosecute cases. The reference in subsection 515 to “any attorney specially appointed by the Attorney General under law” further reflects Congress’s view that the Attorney General can, and occasionally does, make case-specific (i.e., “special”) assignments of such criminal investigative and prosecutorial authority, which can thereby displace the ordinary supervision of a U.S. Attorney.
Subsection 515(b), in turn, reflects a congressional understanding that such an Attorney General may in some cases make such a case-specific “special appointment” to persons who weren’t previously employed at DOJ. It provides that “[e]ach attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law” (emphasis added). (Judge Cannon offers a couple of arguments about why subsection 515(b) shouldn’t be construed to cover a case such as the Attorney General’s appointment of Special Counsel Smith. For reasons I briefly explain in the footnote below, however, those arguments aren’t persuasive.[5])
It might well be the case that Section 515, standing alone, would be sufficient to establish the Attorney General’s authority to appoint a Special Counsel such as Jack Smith, even if Congress had never enacted the broad delegation authority found in Section 510. Indeed, Congress enacted earlier versions of Section 515 many decades before it enacted Section 510, and did so in part to empower the Attorney General—rather than other cabinet Secretaries, who previously had the authority—to control when and under what circumstances to hire attorneys from outside the government to represent the United States. See In re Grand Jury Investigation, 315 F. Supp. 3d 602, 615-17 (D.D.C. 2018) (discussing the 1870 and 1906 enactments); see also Cong. Globe, 41st Cong., 2d Sess. 3037 (1870) (statement of principal sponsor Rep. Jenckes) (“We propose to make it illegal for the Secretary of the Treasury to [hire persons from the private sector to prosecute cases]. If he wishes to engage counsel in any case he must send to the Attorney General. If the Attorney General cannot try the case and the emergency requires assistant counsel, he can employ them. It is then done by the head of the law department, and not by the head of the Interior Department or the head of the Treasury Department. He is responsible as the chief law officer of the Government. If any error is committed we shall know who is chargeable with it. We have then the assurance, if he be the proper person, that the office will be administered economically. These are the principal provisions of the bill.”).
In the Theodore Roosevelt administration, Attorney General Philander Knox exercised this authority at least twice by hiring attorneys from private practice to supervise prosecutions.[6] Several other Attorneys General did likewise in (at least) the Wilson, Hoover, FDR and Truman administrations.[7]
But whether or not Section 515, standing alone, would be enough, surely the combination of Sections 509, 510 and 515—together with the Attorney General’s authority to hire persons to work at DOJ—is more than sufficient to establish that Attorney General Garland had statutory authority to assign Jack Smith the responsibility to manage the Mar-a-Lago investigation and prosecution, just as those statutes gave the Attorney General the power earlier to assign the case to the National Security Division. As the U.S. Court of Appeals for the District of Columbia Circuit held in 1987: “Together, [Sections 509, 510 and 515] vest in the Attorney General the ‘investigative and prosecutorial functions and powers’ [of the Department] … and authorize him to delegate such functions and powers to others within the Department of Justice.” In re Sealed Case, 829 F.2d 50, 55 n.29 (D.C. Cir. 1987).
The Attorney General’s Authority to Create Positions Within DOJ, Including “Offices” that Must be Filled in Conformity with the Appointments Clause
In support of Attorney General Garland’s appointment of Jack Smith as Special Counsel, DOJ has also cited another statute, 28 U.S.C. § 533(1), which Judge Cannon discussed at length in her opinion. Section 533(1) provides that “[t]he Attorney General may appoint officials— … to detect and prosecute crimes against the United States.” Attorneys General did not invoke Section 533(1) for special counsel appointments before Attorney General Garland included it in his 2022 appointment memorandum for Jack Smith.[8] Special Prosecutor Leon Jaworski relied upon it, however, along with other statutes, in his Supreme Court brief in the Nixon tapes case. And in the Court’s decision in that case, Chief Justice Burger identified Section 533, together with Sections 509, 510 and 515, as establishing that Congress has vested the Attorney General with “the power to appoint subordinate officers”—including the special prosecutor there, Jaworski—“to assist him in the discharge of his duties.” 418 U.S. at 694.
Judge Cannon’s arguments for why Section 533(1)’s straightforward text isn’t an additional (or at least a confirmatory) source of authority for the Attorney General’s appointment of Special Counsel Smith are unconvincing. However, because the other statutes I discuss above (including Sections 509, 510 and 515) are more than sufficient to do the trick, and because there is some uncertainty whether Congress intended Section 533 to create any authority the Attorney General doesn’t otherwise have (see footnote 8), I’ll simply point interested readers to DOJ’s persuasive arguments about Section 533(1) in its 2018 court of appeals brief in the case challenging Acting Attorney General Rosenstein’s authority to appoint Special Counsel Robert Mueller. See also In re Grand Jury Investigation, 315 F. Supp. 3d at 652-54.
For present purposes, I’ll confine my analysis to one particular argument Judge Cannon makes regarding Section 533(1), because it raises an additional, important issue that’s lurking throughout her opinion, concerning whether the Attorney General has statutory authority to establish a continuing position, or “office,” to handle a particular criminal proceeding.
Judge Cannon insists that Section 533(1)’s reference to the appointment of “officials” to “detect and prosecute crimes against the United States” does not authorize the Attorney General to appoint someone to “prosecute crimes” if that person would, by virtue of the assignment, be an “officer” for purposes of the Article II’s Appointments Clause.
Simply as a matter of statutory construction, I don’t think that argument holds water, for at least three reasons. First, although the term “officials” might be broader than the term “officers” (at least in some statutes), the term “officials” necessarily encompasses constitutional officers as well as mere employees. See Black’s Law Dictionary (12th ed. 2024) (defining “officer” as “[s]omeone who holds or is invested with a public office”) (emphasis added). Second, the prosecution of federal crimes is a significant governmental authority, and therefore someone assigned to perform that function pursuant to Section 533(1) will virtually always be an “officer” for Appointments Clause purposes, at least where the “appoint[ment]” in question is to a continuing position in the U.S. government (see below). Therefore, if Judge Cannon were correct that the word “official” excluded an “officer,” the reference to “prosecution” in section 533(1) might be rendered a virtual dead letter. Third, there is no reason to assume Congress had the Appointments Clause in mind at all when it enacted Section 533 (or its predecessors, going back to 1921). Therefore, the legislature’s use of the broad and generic term “officials” wasn’t designed to imply anything one way or the other about whether such officials might include DOJ actors who occupy constitutional “offices” and thus must be appointed in conformity with the Appointments Clause. Cf. Steele v. United States, 267 U.S. 505, 507 (1925) (use of the term “civil officer of the United States” in the Espionage Act “does not mean an officer in the constitutional sense”).
For these and other reasons, Judge Cannon’s argument about the meaning of “official” in Section 533(1) is less than compelling.
Her discussion of that statutory term, however, reflects a related concern that lurks throughout Judge Cannon’s opinion—namely, her apparent view that even if Congress has afforded the Attorney General with authority to assign a prosecutorial function to DOJ personnel who would be deemed “employees” for purposes of the Appointments Clause, Congress has not vested the Attorney General with the power to create a Special Counsel “office” in the constitutional sense, i.e., to create a continuing DOJ position that must be filled in conformity with the Appointments Clause. See, e.g., p.25 (“Section 515(a) does not authorize the creation of any office.”), p.84 (“the problem is the absence of a statutorily created office to fill in the first place”).
In order to grapple with this issue, it’s necessary to establish some Appointments Clause basics. I discussed this topic in far greater detail in this 2018 post, during the challenge to Robert Mueller’s appointment. Go there if you want the details. Here’s the short version:
The Appointments Clause applies to prescribe the manner of appointment only of individuals who occupy a federal “office.” And as the Supreme Court reiterated in Lucia v. SEC (2018), such an individual occupies an “office,” and is thus an Appointments Clause “officer,” only if two conditions are met:
(i) The individual is empowered to “exercise[] significant authority pursuant to the laws of the United States”; and
(ii) She occupies “a ‘continuing’ position established by law” within the U.S. government.
If either of those conditions isn’t satisfied, the individual is not an “officer” for Appointments Clause purposes, and the Clause therefore doesn’t constrain the manner in which she may be selected. As Justice Kagan put the point for the Supreme Court in Lucia: If the government actor is not an officer, “the Appointments Clause cares not a whit about who named them.”
So does Jack Smith satisfy the dual criteria for holding an “office” subject to the Appointments Clause?
It is uncontroverted that supervising a criminal prosecution for violations of federal law, in the way Jack Smith is doing with respect to the Mar-a-Lago case, is an exercise of “significant authority” that satisfies the first prong of the Appointments Clause “officer” test. But what about the second condition?
Trump and DOJ have litigated the case on the shared assumption that that condition is also satisfied, i.e., that Attorney General Garland appointed Smith to serve in a “continuing position established by law.” I have serious doubts about that conclusion, for reasons I offered in my 2018 post. I won’t belabor that argument here. Suffice it to say that I questioned whether the second condition for “officer” status is satisfied because of a combination of three characteristics of Special Counsel Mueller that also apply to Special Counsel Smith:
(i) The Attorney General has hired the Special Counsel only to perform a discrete and limited task—Jack 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) (emphasis added). 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.” Id. at 327.[9]
(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 has not purported to establish an “Office” independent of Smith’s appointment. 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, there would be no “office” to be filled by another appointee—in that 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’s not the case here. There is no formal DOJ position that would persist beyond Jack Smith’s tenure.
(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 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 argued in 2018 that, whether or not any one of these characteristics standing alone would render a Special Counsel such as Robert Mueller (or Jack Smith) an “employee” rather than 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.
As noted above, however, the parties in Trump v. United States disagree with me on this, and therefore there’s little chance that the appellate courts will hold that Attorney General Garland hasn’t (implicitly) created a constitutional “office” that he has filled by appointing Jack Smith to occupy it. So let’s assume, at least for the sake of argument, that by virtue of his appointment memorandum in November 2022, the Attorney General has created an “office” within DOJ to which the Appointments Clause applies.[10]
Again, there is no dispute that an Attorney General may not create a continuing position within DOJ—whether it is an Appointments Clause “office” or not—absent statutory authorization to do so, either express or implied. Which prompts this question: Has Congress provided such authority—i.e., has Congress vested the Attorney General with the power to establish new DOJ positions that meet the two conditions of an Appointments Clause “office”?
Before answering this question, I should emphasize that the answer should not matter for purposes of Trump’s motion to dismiss the indictment. Assume, for example (and for the sake of argument), that although Attorney General Garland had authority 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 case, the proper remedy would be simply to construe the Attorney General’s November 2022 appointment memorandum, in accord with its plain language, to confer delegated authority to Jack Smith, a newly hired DOJ employee, without establishing a new DOJ position the duties of which would “continue” even after “the person be changed.” Maurice, 26 F. Cas. at 1214 (Marshall, C.J., sitting as Circuit Justice). In that case, Smith would continue to have authority to handle the 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 in a discrete, particular case (“from time to time” in the usual DOJ parlance), 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).
Although I have not done a deep dive into the Code of Federal Regulations, let alone internal DOJ documents, I would not be surprised if they contain many such references to Section 510 (often in conjunction with 5 U.S.C. § 301) in instances when DOJ has established subordinate positions within the Department that are to be filled by individuals who can exercise significant government authority.[11] Nor is this practice unique to the Department of Justice.[12]
That has certainly been the case when it comes to “independent” and “special” counsels hired to work at DOJ. In several instances where the Attorney General has appointed such counsels, the appointment followed (or was contemporaneous with) the express creation of an office itself.
- First, and 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). He thereafter appointed Archibald Cox to be the Director of that Office. After Cox was removed in the so-called “Saturday Night Massacre,” Acting Attorney General Robert Bork formally abolished the Office. 38 Fed. Reg. 29,466 (Oct. 23, 1973). Less than two weeks later, however, Bork was compelled to reestablish the office—once again citing Sections 509, 510, and 301 as his authority to do so. See 38 Fed. Reg. 30,738 (Nov. 2, 1973). Contemporaneously with the reestablishment of the office, Acting Attorney General Bork appointed Leon Jaworski to fill it. (For much more about this episode surrounding the Saturday Night Massacre and its aftermath, see this post. Both Cox and Jaworski, incidentally, enjoyed a greater degree of “independence” than what the current regulations afford Jack Smith.)
- In March 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 rejected the next year 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’”).[13]
- 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 regulation Meese had promulgated. 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.)
- Appearing as an amicus in the Mar-a-Lago Trump case, Meese now insists that Congress hasn’t authorized the Attorney General to create such offices within DOJ. But Meese certainly thought he had such authority when he was the Attorney General—and he twice cited Sections 510 and 301, among other statutes, as providing such authority when he himself established such positions for the performance of criminal investigative and prosecutive functions delegated from the Attorney General himself. See 52 Fed. Reg. at 7270; 53 Fed. Reg. at 31,323.
- 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). (Attorney General Reno had separately appointed Robert Fiske to perform the functions of what became that office.)
If no statute 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. But Sections 510 and 301 (at a minimum) do confer such authority, which is why this practice (and similar practices in other agencies) has until recently virtually never been questioned by anyone in any of the three branches.
Attorneys General have made other appointments, as well, of “special” counsels to handle criminal cases with an unusual degree of independence, even where the Attorney General did not separately and expressly establish a formal “office.” For example:
- On March 29, 1979, Attorney General Griffin Bell, citing Section 515, appointed Paul Curran as special counsel to investigate allegations of questionable financial dealings involving President Carter’s family peanut warehouse—an investigation that included the issuance of subpoenas to the President’s brother Billy and his wife. See Future of the Independent Counsel Act: Hearings Before the Senate Comm. On Governmental Affairs, 106th Cong., 1st Sess. 113 (1999). Bell later explained that this was a delegation of “all the power I had to [Curran].” Id. at 37. Although Attorney General Bell originally did not delegate to Curran the power to bring prosecutions, that limitation was met with “a rain of criticism from Republicans,” and so three days later Bell gave Curran “the power accorded the two special prosecutors in the Watergate affair, Leon Jaworski and Archibald Cox,” including “the authority to seek indictments without clearance from anyone in the Justice Department.”
- On June 30, 1999, Attorney General Reno promulgated the regulations that currently govern Special Counsels “selected [by the Attorney General] from outside the United States Government.” 28 C.F.R. § 600.3(a). Reno announced that she did so “by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510.” 64 Fed. Reg. 37,038, 37,042 (July 9, 1999). The prospect of creating such a regulatory special counsel regime in lieu of the Independent Counsel statute was the subject of a great deal of attention in Congress both before and after Attorney General Reno acted. Yet, as far as I know, no one in Congress (or elsewhere) so much as mentioned any issue, let alone expressed any doubts, about the Attorney General’s statutory authority to promulgate such regulations, or to hire a Special Counsel from outside the government with the power to prosecute criminal cases.Two months later, in September 1999, Attorney General Reno made the first selection under the new regulations: She appointed Jack Danforth to be a Special Counsel to investigate possible misconduct on the part of federal law enforcement personnel in connection with the Branch Davidian incident near Waco, Texas. Under the regulations Reno had issued that June—the same regulations that also govern Special Counsel Smith—Danforth had the “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6.
- In 2017, Acting Attorney General Rod Rosenstein, citing 28 U.S.C. §§ 509, 510 and 515, appointed Robert Mueller to investigate the Russian government’s efforts to interfere in the 2016 presidential election and any links or coordination between individuals associated with the Trump campaign and the Russian government. Mueller, too, was given the investigative and prosecutorial powers prescribed in the 1999 Special Counsel regulations.
- In January 2023, Attorney General Garland, citing Sections 509, 510, 515 and 533, appointed Robert Hur as “Special Counsel for the United States Department of Justice” to conduct an investigation of possible unauthorized removal and retention of classified documents or other records discovered at the Penn Biden Center and at President Biden’s personal residence in Wilmington, with the delegated authority to prosecute federal crimes arising from that investigation.
In light of all these examples (as well as those in the first half of the Twentieth Century (see footnotes 6 and 7, supra), Judge Cannon understandably acknowledged (p.40) that if her holding is correct, it would call into legal question a “‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history.”[14] Yet she plowed ahead nonetheless, apparently untroubled by the fact that no one in any of the three branches (or within Colonel North’s or President Nixon’s litigation teams) challenged the lawfulness of this “tradition”—and, in particular, Congress’ statutory authorization to the Attorney General to establish such offices and to appoint persons from outside DOJ to fill them—until the challenge to the Mueller appointment in 2018, which the unanimous court of appeals briskly (and appropriately) dispatched.
The United States v. Nixon Precedent
Which brings back me, finally, to the Supreme Court’s 1974 decision in Nixon v. United States. In that case, Chief Justice Burger wrote this for a unanimous Court (418 U.S. at 694):
Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. … It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.
In support of the latter statement about the Attorney General’s power to appoint “subordinate officers to assist him in the discharge of his duties,” the Court cited 28 U.S.C. §§ 509, 510, 515 and 533. And it added in footnote 8 that Acting Attorney General Bork issued the regulation establishing the Office of Watergate Special Prosecution Force “pursuant to his statutory authority.”
The U.S. Court of Appeals for the D.C. Circuit recently held that these holdings in Nixon settle the legal question Judge Cannon addressed: “[W]hether Congress has ‘by law’ vested appointment of [a] Special Counsel … in the Attorney General has already been decided by the Supreme Court.” 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.).
Judge Cannon disagrees. She insists that the relevant sentences in Nixon were dicta because Nixon hadn’t contested Acting Attorney General Bork’s statutory authority to establish the Office of Watergate Special Prosecution Force and appoint Leon Jaworski to head it.
If I had to guess, I’d predict the U.S. Court of Appeals for the Eleventh Circuit will agree with the D.C. Circuit that the Nixon passage is binding on lower courts. But the statutory ruling in Nixon is important for yet another reason, as well.
Judge Cannon is right that President Nixon did not contest Acting Attorney General Bork’s statutory authority to (re-)create the Office of Watergate Special Prosecution Force and to appoint Leon Jaworski to be its Director. “Across hundreds of pages of briefing (and hours of oral argument) in Nixon,” she notes (pp. 61-62), “neither party challenged the Special Prosecutor’s validity or the Attorney General’s appointment authority.”
Yet this was not simply a matter of deliberate or negligent waiver on Nixon’s part. Far from it.
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). (As noted in footnote 13, Oliver North’s Williams and Connolly attorneys made the same assessment fourteen years later.) For Judge Cannon, none of this matters. As Adam Unikowsky pithily observes, under her reading, everyone in the Nixon case “messed up”:
President Nixon’s army of lawyers messed up by failing to raise, or even notice, the winning argument. The Supreme Court messed up too. On its face, the Court’s opinion states without reservation that the Attorney General had the statutory authority to hire Leon Jaworski. All of the Justices who heard the case, and all of their law clerks, carelessly failed to notice that this was an open issue.
Of course, they didn’t all mess up. 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.
Judge Cannon ought to have done likewise.
– – – – – – – – –
[1] Amici Meese, Calabresi, et al., argued to Judge Cannon that Smith is a principal officer, and that therefore the Appointments Clause required him to be appointed by the President, by and with the advice and consent of the Senate. That argument, however, cannot be squared with the Supreme Court’s 1988 decision in Morrison v. Olson that the Independent Counsel there (who had much more independence than does Jack Smith) was an inferior officer. It would also contravene an extensive practice of special counsel appointments by Attorneys General. Therefore, although she expressed considerable disdain for Morrison, Judge Cannon declined to rest her ruling on the ground that Smith is a principal officer. “For purposes of this Order, the Court accepts the Special Counsel’s contested view that he qualifies as an ‘inferior Officer,’” she wrote (p.2).
[2] In the final sections of her opinion, Judge Cannon also purported to find that Special Counsel Smith has expended funds “in violation of” the Appropriations Clause of Article I. That holding, however, is predicated entirely on the judge’s earlier conclusion that the Attorney General lacked statutory authority to appoint Jack Smith and to authorize him to prosecute the case. Therefore, the question of whether the Attorney General has such statutory appointment/delegation authority is really the only relevant question.
[3] Before 1870, the Secretaries of the State, War, and Treasury Departments were authorized to bring federal criminal actions without participation by the Attorney General, and they regularly paid substantial sums for the services of attorneys from the private sector in order to prosecute such cases. One of the primary reasons Congress passed the 1870 Act was to consolidate all such authority with the Attorney General and the new Department of Justice—including, as explained below, the authority to hire attorneys from the private sector to represent the United States in particular cases.
[4] Judge Cannon notes (p.37) that in 1973, when Acting Attorney General Robert Bork created the Office of Special Watergate Prosecution Force, headed by Leon Jaworski, Bork cited only Sections 509 and 510 (as well as the general authority given to Department Heads in 5 U.S.C. § 301), and did not mention Section 515. That makes sense because, as I explained above, Sections 509 and 510 are sufficient to establish the authority. Section 515 merely confirms it.
[5] First, Judge Cannon asserts (p.26) that the term “retained” refers to a hiring that occurs before the assignment to the individual of authority to prosecute. But there’s no basis for thinking that’s what Congress meant. To the contrary, the reference in § 515(b) to the need for the individual to take an oath—something the person presumably would already have done had they been previously hired to work at DOJ—indicates otherwise. And even the 1951 version of Black’s Law Dictionary that Justice Cannon herself cites as authority (p.28) defined “retain” to mean, inter alia, “to engage the services of an attorney or counselor to manage a case”—which describes to a tee what happened when Attorney General Garland hired Jack Smith to a DOJ position in order to prosecute (“manage”) particular cases.
Judge Cannon also contends (pp. 30-33) that the reference to “special attorneys” in § 515(b) can mean only such attorneys hired pursuant to 28 U.S.C. § 543 to assist U.S. Attorneys. There is little reason to conclude, however, that Congress intended the term “special attorneys” in § 515(b) to be so limited. In any event, § 515(b) refers both to a “special attorney” and to a “special assistant to the Attorney General,” and the latter plainly refers to an attorney hired to assist the Attorney General rather than a U.S. Attorney. That makes perfect sense, because § 515(b) is the latest iteration of section 17 of the 1870 Act creating the Justice Department, which deliberately authorized the Attorney General to hire “a special assistant to the Attorney-General, or to some one of the district attorneys,” 16 Stat. at 165 (emphasis added), thereby affording the Attorney General two different options, only one of which involved assigning a special counsel to assist a district attorney (the predecessor to today’s U.S. Attorney). See In re Grand Jury Investigation, 315 F. Supp. 3d 602, 617 (D.D.C. 2018) (detailing this history). As I discuss in the text of this essay, since early in the Twentieth Century, Attorneys General have used the “special assistant to the Attorney General” provision of the statute to hire counsel to displace, rather than to assist, the district attorney (or U.S. Attorney) in the prosecution of a particular case.
[6] In 1902, Knox appointed Wickham Smith to be a Special Assistant to the Attorney General, assigned to investigate and possibly prosecute persons suspected of fraudulently importing Japanese silks. A federal judge later granted a motion to quash indictments brought by Smith, largely on the ground that the 1870 statute allegedly had not vested the Attorney General with the power to authorize such Special Assistants to the AG to seek indictments in a grand jury. See United States v. Rosenthal, 121 F. 862 (C.C.S.D.N.Y. 1903). In 1906, Congress amended the statute to make clear that the authority did extend to the function of seeking grand jury indictments. See In re Grand Jury Investigation, 315 F. Supp. 3d at 616-17.
In 1903, Attorney General Knox appointed Francis Heney of the San Francisco Bar as a “special assistant” to the Attorney General “to take charge of the prosecution of the land fraud cases in Oregon.” Letter to President Roosevelt from Attorney General Knox, Dec. 2, 1903, at 1. The sitting District Attorney in Oregon, John Hall, planned to treat Heney as his assistant, but Attorney General Knox assured Heney that he was “to be in full charge,” and Knox telegraphed Hall to instruct him that Heney represented the Attorney General and was to be obeyed as Knox himself would be obeyed. See Lincoln Steffens, The Taming of the West, Pt. II, in The American Magazine, vol. 64, at 587-88 (Oct. 1907); see also id. at 594 (recounting how Heney took over all witness examination from District Attorney Hall once he realized that Hall was “crooked” and was conspiring to protect possible defendants). Heney eventually haled District Attorney Hall himself before the grand jury, and then inveighed upon the President to remove Hall from office. Id. at 597. Several years later, Heney had Hall indicted for “conspiracy to defeat the administration of justice,” id. at 599, and secured a conviction against Hall in 1908, see John Messing, Public Lands, Politics, and Progressives: The Oregon Land Fraud Trials, 1903-1910, in Pacific Historical Rev., Vol. 35, No. 1, at 61 (Feb. 1966).
[7] See United States v. May, 236 F. 495, 498 (8th Cir. 1916) (describing a 1914 appointment by Attorney General Gregory); United States v. Cohen, 273 F. 620, 621-22 (D. Mass. 1921) (describing 1921 appointments by Attorney General Palmer and Acting Attorney General Nebeker); United States v. Amazon Ind. Chem. Corp., 55 F.2d 254, 256 (D. Md. 1931) (describing a 1931 appointment by Attorney General Mitchell); Shushan v. United States, 117 F.2d 110, 113-14 (5th Cir. 1941) (describing what were likely two 1939 appointments by Attorney General Murphy); United States v. Powell, 81 F. Supp. 288, 289 n.1 (E.D. Mo. 1948) (describing a 1948 appointment by Attorney General Clark). See also Ewert v. Bluejacket, 259 U.S. 129, 133-34 (1922) (describing an appointment by Attorney General Bonaparte of a special assistant to the Attorney General to assist in the institution and prosecution of suits to set aside deeds to certain allotments in the Quapaw Indian Agency). There might have been many other such appointments, as well. These are merely those I was able to identify in a very rudimentary Westlaw search.
[8] I do not know why Section 533 wasn’t cited in earlier appointment documents, but one reason might be uncertainty about whether Congress intended that provision to establish any authority the Attorney General did not otherwise have. Congress first enacted it in a 1921 appropriations act that authorized DOJ expenditures of funds “for the detection and prosecution of crimes against the United States.” Act of Mar. 4, 1921, Pub. L. No. 66-389, 41 Stat. 1367, 1410. That provision included a proviso that “for the purpose of executing the duties for which provision is made by this appropriation, the Attorney General is authorized to appoint officials who shall be designated ‘special agents of the Department of Justice,’ and who shall be vested with the authority necessary for the execution of such duties.” Id. at 1411. Congress included similar provisos in appropriation statutes over the following six years. See Delegation of the Att’y Gen.’s Auth. to Investigate Credit Card Fraud, 7 U.S. Op. O.L.C. 172, 173 (1983). In 1922, the Chair of the relevant House subcommittee stated that it did not “creat[e] any power or greater authority” and that the Attorney General already “ha[d] the general authority” to hire such personnel. 62 Cong. Rec. 5209 (statement of Rep. Husted). I haven’t done any legislative history research beyond that, however.
[9] As I discussed in my 2018 Mueller post, this was true, as well, of Independent Counsel Alexia Morrison in Morrison v. Olson, yet the Court in Morrison held, in an unelaborated footnote, that it was “clear” Morrison was “an ‘officer’ of the United States” who had to be appointed as the Appointments Clause prescribes. 487 U.S. at 671 n.12. That drive-by holding in Morrison is difficult to square with Auffmordt and other decisions, but nevertheless it is governing precedent. Therefore, although this factor is relevant to the question of whether Smith is an “officer,” it can’t be determinative.
[10] Appearing as an amicus in the Mar-a-Lago Trump case, Professor Seth Barrett Tillman has argued that if (as I suggest) Jack Smith does not hold a “continuing” position and therefore is not an “officer” to whom the Appointments Clause applies, it would mean that the Constitution prohibits him from prosecuting Trump, even if Congress did vest the Attorney General with the power to appoint Smith to do so. This argument is simply backwards, and Tillman doesn’t cite any authority to support it. The purpose of the “continuing position” test, in conjunction with the “significant government authority” test, is simply to assess whether Congress is limited by the Appointments Clause in prescribing who may appoint the official. There is nothing in the Constitution that requires holding a “continuing position” in the federal government in order to exercise significant government functions such as prosecution. The Supreme Court has long recognized that non-officers may exercise such functions. In the leading Auffmordt case, for example, the Court upheld import duties imposed by 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 authority was invalid—to the contrary, the Court upheld the import duties he imposed upon 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.” 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).
[11] To take the example closest to home, 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 from 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 Judge Cannon suggested, 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.
[12] The heads of other agencies likewise have used delegation authorities analogous to that found in Section 510, together with Section 301, to establish positions within their departments to be filled by individuals assigned to perform significant delegated authorities of the department head. 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).
[13] In a recent article, Professors Calabresi and Lawson note that North did not specifically argue that Meese lacked statutory authority to establish and fill the office; apparently his attorneys’ principal statutory argument was that the Ethics in Government Act had preempted (or superseded) that earlier authority. But even if that is so, it simply helps prove the point: The statutory authority for Meese’s actions was so clear and uncontestable that even North’s resolute Williams and Connolly lawyers, including Barry Simon, Brendan Sullivan and Nicole Seligman, apparently chose not to challenge it.
[14] There might be other examples, as well. I have not tried to perform a comprehensive historical search. Nor have I listed other cases in which Attorneys General have invoked their statutory authorities to authorize “outside” counsel to investigate possible crimes, including the power to compel production of evidence, without conferring upon them the power to seek grand jury indictments or to prosecute a case at trial—something that Attorney General William Barr, for example, appears to have done at least three times in the George H.W. Bush administration. In 1991, Barr appointed Nicholas Bua to investigate the so-called “Inslaw Affair,” which involved allegations that certain high-level DOJ officials had stolen software from a computer company. In 1992, Barr appointed Malcolm Wilkey to conduct a preliminary review of the alleged abuses of the “House Bank” by Members and officers in the House of Representatives. And, also in 1992, Barr appointed Frederick Lacey to conduct a preliminary investigation of any wrongdoing by DOJ or CIA officials concerning an illegal loan to Iraq from the Atlanta branch of an Italian bank, Banca Nationale del Laroro. Similarly, in 2000 Attorney General Reno appointed Paul Coffey, a former DOJ prosecutor, to investigate whether CIA Director John Deutch had unlawfully stored classified information on home computers and to recommend whether a prosecution was warranted.