The Volokh Conspiracy

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Comparing the Orders Appointing Special Counsel Mueller and Special Counsel Smith

Mueller could only prosecute if it was "necessary and appropriate." Smith has no such constraint.


Today Attorney General Garland appointed a special counsel John L. Smith. The intent is clear: to allow the investigation and prosecution of Donald Trump to continue during the presidential campaign.

Paragraph (c) specifically references the ongoing investigation concerning Mar-A-Lago:

(c) The Special Counsel is further authorized to conduct the ongoing investigation referenced and described in the United States' Response to Motion for Judicial Oversight and Additional Relief, DonaldJ Trump v. United States, No. 9:22-CV-81294-AMC (S.D. Fla. Aug. 30, 2022) (ECF No. 48 at 5-13), as well as any matters that arose or may arise directly from this investigation or that are within the scope of28 C.F.R. § 600.4(a).

And paragraph (b) includes the entire January 6 kit-and-caboodle:

(b) The Special Counsel is authorized to 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, as well as any matters that arose or might arise directly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a).

To make the point clear that this order concerns Trump, the special counsel does not have authority over the many pending cases of those who actually entered the Capitol on January 6. President Trump was not one of those people.

This authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021. Those investigations and prosecutions remain under the authority of the United States Attorney for the District of Columbia. Further delineation of the authorizations between the Special Counsel and the United States Attorney for the District of Columbia will be provided as necessary and appropriate.

The order appointing Smith, like the order appointing Robert Mueller, references the same suite of federal regulations:

(e) Sections 600.4 to 600.10 of title 28 of the Code ofFederal Regulations are applicable to the Special Counsel.

I wrote about these regulations for Lawfare in 2017.

But there is one huge difference between the orders. Acting Attorney General Rod Rosenstein's order put a limit on Mueller's prosecutorial authority:

If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

Prosecution must be both "necessary and and appropriate." Really "necessary" is a higher bar than "appropriate," so the former is the controlling term.

Attorney General Barr's order appointing John Durham also included the "necessary and appropriate" language.

And going further back, Section 594 of the now-lapsed Independent Counsel Statute places a "necessary" tag on the power to prosecute:

"(a) AUTHORITIES.—Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in such independent counsel's prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18. Such investigative and prosecutorial functions and powers shall include—

"(1) conducting proceedings before grand juries and other investigations;

"(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that such independent counsel considers necessary;

By contrast, Attorney General Garland's order has no such requirement that the prosecution be "necessary":

The Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters. The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel's investigation.

The prosecution need not be "necessary." Smith has a green light to indict Trump.

Justice Scalia's admonition in Morrison v. Olson about the independent counsel aptly describes our present moment:

 As I observed earlier, in the nature of things, this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the Executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?

It is painfully clear that Garland appointed Smith for one reason, and one reason alone: "prosecuting a particular individual" named Donald J. Trump.

Looking back, I regret the amount of time I wasted on the Mueller investigation. I lost track of how many blog posts, articles, and interviews I did on the topic. And ultimately, it all led to nothing. We will see what Special Counsel Smith's mandate yields.

Update: I have updated this post to include references to Durham's appointment and the now-lapsed independent counsel statute.