The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Special Counsel Jack Smith's Appointment Is Unconstitutional

Everything he has done since Nov. 2022 is null and void.


On November 18, 2022, Attorney General Merrick Garland purported to appoint private citizen Jack L. Smith to be a Special Counsel with the power of one of the 93 U.S. Attorneys but with nationwide jurisdiction.  This makes Jack Smith more powerful than any of the 93 U.S. Attorneys even though they have been Senate-confirmed to their particular offices, and Jack Smith has not been Senate confirmed for the particular office, which he now claims to hold.  A close examination of the Justice Department's (DOJ's) organic statute makes it clear that, unlike at least four other Heads of Cabinet Departments, the Head of the Justice Department has not "in, the words of the Appointments Clause, been "by Law" *** vested" with the power to appoint inferior officers like Jack Smith who have more power than any of the 93 Senate-confirmed U.S. Attorneys.  This is made clear by an examination of the DOJ's organic statute, 28 U.S. C. Sections 509, 510, 515-519, 533, and, most importantly, Section 543.  This latter statute, 28 U.S.C. Section 543, explicitly allows the appointment by the Attorney General of a Special Counsel to assist a U.S. Attorney but not to replace him.  Comparison of the DOJ's organic statute with the organic statutes of at least four other Cabinet Departments illustrates the kind of clear laws by which Congress exercises its power "to by Law vest the Appointment of such inferior Officers, as they think proper, *** in the Heads of Departments."

Since 1999, when the Independent Counsel provisions of the Ethics in Government Act expired, the Department of Justice ("DOJ") has had in place regulations providing for the appointment of private citizens as Special Counsels who possess "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." Unlike a U.S. Attorney, however, private citizen Jack Smith has not been nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds.  This is blatantly unconstitutional and renders Jack Smith powerless to seek a writ of certiorari before judgment from the Supreme Court, as he is trying to do at the moment.

Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, were patently unlawful, for reasons set forth in great detail in: Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment is Unlawful, 95 Notre Dame Law Review 87 (2019).  The same argument renders the appointment of private citizen Jack Smith to prosecute Donald Trump right now unconstitutional.  Private citizen Jack Smith, under the regulation, has all of the power of a U.S. Attorney, and also nationwide jurisdiction, but he was never nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds, in the way that U.S. Attorneys are nominated and confirmed for their particular offices.  This is blatantly unconstitutional. It is imperative that the Supreme Court rule on this question right now.  I have co-written and co-signed an amicus brief with former Attorney General Ed Meese and Professor Gary Lawson, which was filed in the Supreme Court today in United States v. Trump, which is a petition for certiorari before judgment filed by private citizen Jack Smith purporting to speak for the government of the United States, and which is currently before the Supreme Court, and which makes the argument that Jack Smith's appointment was unconstitutional.  Here is a link to the filed Amicus Brief:

My concern about the legality of Jack Smith's appointment is both a concern that Trump's convictions might eventually be overturned by the Supreme Court on appeal, because Jack Smith was unconstitutionally appointed, and a concern that even someone who has conducted himself, in the way that Donald Trump has done, must be tried in a constitutional way.  The current Supreme Court has at least six justices who really care about the separation of powers and the Appointments Clause.  They think about the Appointments Clause and the separation of powers, which it protects, in exactly the same way as I do, and not as the Burger Court did when it decided the erroneous precedent of United States v. Nixon, 418 U.S. 683 (1974).  I think the Supreme Court, when it ultimately addresses these Appointment Clause issues will reach the same conclusion that former Attorney General Ed Meese, Professor Gary Lawson, and I have in the amicus brief, which we filed today in the Supreme Court.  Jack Smith's appointment to be Special Counsel was unconstitutional, and every action that he has taken since his appointment is now null and void.

The proper way in which an Attorney General should appoint a Special Counsel, like Jack Smith, is to ask one of the very best Senate-confirmed U.S. Attorneys now in office to prosecute the cases arising out of the events of January 6, 2021, or the misuse of classified documents case, to be Special Counsel allowing that U.S. Attorney to prosecute cases nationwide and not only in one of the 93 Districts each of which has its own Senate confirmed U.S. Attorney.  At the same time the Attorney General should then, and could then, under 28 U.S.C Section 543 appoint Jack Smith to be the Special Counsel's Special Assistant.  The Appointments Clause of the Constitution is perfectly satisfied when someone exercises power as an officer whose character the Senate and the President have previously approved of and that is germane to that particular office.  But, we do not want future U.S. Attorney Generals, such as the ones Donald Trump might appoint, if he is re-elected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith.  Think of what that would have led to during the McCarthy era or in the Grant, Harding, Truman, or Nixon Administrations in all of which an Attorney General was corrupt.

It is irrelevant that Jack Smith was confirmed by the Senate to be the U.S. Attorney for the Middle District of Tennessee during the Trump Administration.  At the time of his appointment to be Special Counsel on November 18, 2022, he was a war crimes prosecutor in the Hague employed by the government of Kosovo.  The organic statutes governing the Justice Department allow the Attorney General great discretion in moving around on the DOJ chess board currently confirmed appointees.  They do not allow the Attorney the power to create an inferior officer Queen just because someone was at some point in the past a DOJ superior or inferior officer.

There are four reasons why Jack Smith's appointment as Special Counsel is unconstitutional.  See generally Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87 (2019).   First, all federal offices must be "established by Law," and there is no statute authorizing such an office in the DOJ now that the Ethics in Government Act has sunsetted out of existence in 1999. There is also no statute that clearly vests in the Attorney General the power to appoint inferior officers at all.  The amicus brief that was filed on my behalf today conducts what I think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and the lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels with the power of a Senate-confirmed United States Attorney. They authorize the creation and appointment of Special Counsels to "assist" United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels with nationwide jurisdiction and to independently prosecute high level wrongdoing, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller or Jack Smith who replace, rather than assist, United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the Special Counsel's appointment.  This is important again because the requirement of presidential nomination and Senate confirmation keeps former Justice Department thugs, like Rudy Giuliani, from being given too much power by a corrupt or incompetent Attorney General of whom we have had some in American history. Richard Nixon's Attorney General John Mitchell went to jail, and other Attorney Generals for Presidents Grant, Harding and Truman were corrupt. Harding's Attorney General was actually indicted and went free only because there was a hung jury, and he was not retried.

Second, even if one chooses to overlook the absence of statutory authority for the office, which Jack Smith currently holds, there is also no statute specifically vesting in the Attorney General the power to appoint an inferior officer Special Counsel with the powers that Jack Smith currently has of a Senate-confirmed officer. Under the Appointments Clause, inferior officers can be appointed by the Heads of Departments only if Congress vests the power to do that by statute in the Head of a Deppartment – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Supreme Court has defined an inferior officer as being one who is directed, supervised, and controlled by a superior officer in Edmond v. United States, 520 U.S. 651 (1997) and in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).  Attorney General Merrick Garland is not, and cannot under the DOJ regulation under which Smith was appointed, direct and control Jack Smith's activities in a way that satisfies the Edmond test.  Garland stressed that Jack Smith would act entirely independently of the Biden Administration, and he has done so even filing his petition for certiorari before judgment without the name of anyone from the Office of the Solicitor General being on the certiorari before judgment petition.

Fourth, the Special Counsel is, in all events, a superior, like a U.S. Attorney, rather than an inferior officer, like an Assistant U.S. Attorney, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), cannot plausibly be read to say that any person who is in any fashion subordinate to another executive official is an "inferior" officer as some lower federal courts have erroneously held. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.

There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction including the U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, who secured the conviction and jail time of Scooter Libby, Vice President Dick Cheney's Chief of Staff, for crimes committed in the District of Columbia, Washington, D.C. Statutes and the Constitution do not, however, permit the Attorney General to appoint any old private citizen, even one who was in the past a U.S. Attorney like Rudy Giuliani or Jack Smith, to be a substitute United States Attorney today under the title "Special Counsel" without the advice and consent of the Senate to a presidential nomination for the specific office of "Special Counsel". That is what happened on November 18, 2022 when Jack Smith was appointed. That appointment was unlawful, as are all of the legal actions that have flowed from it.

What should happen now is that Attorney General Merrick Garland should find the brightest, best, and most impartial U.S. Attorney, an equivalent today to what Patrick Fitzgerald was in 2003, but less of a zealot, and Garland should appoint him or her to be the Special Counsel for investigating all crimes that were committed on January 6, 2021, including those crimes allegedly committed by then-President Donald Trump, as well as the misuse of classified documents case in Florida.  Garland should then appoint Jack Smith to be the Special Assistant to the new Special Counsel.  The new Special Counsel, with Jack Smith's advice, should then convene a new constitutionally summoned grand jury and present evidence before it both in the January 6, 2021 case, and in the classified documents case in Florida, both of which need to be re-started from scratch.  The new U.S. Attorney/Special Counsel should then make prosecuting or not prosecuting Donald Trump, immediately, his or her first priority, ahead of re-prosecuting the prior criminal defendants who Jack Smith unconstitutionally prosecuted.  A lot of the people who Jack Smith has sent to jail, or who entered into plea bargains with him, might be very willing to plea bargain quickly with the goal being to get convictions of Donald Trump quickly enough, for the former President, if he is in fact convicted, to appeal to the D.C. Circuit or to the Eleventh Circuit or to the Supreme Court, if it chooses to hear the case, all before early voting starts in the November 2024 presidential election.

The American people need for former President Donald Trump to get his day in court, as soon as possible, while respecting Donald Trump's constitutional rights.  It is more important that this happen than whether any of the people who Jack Smith has already convicted or entered into plea-bargains with get punished.  It should have been Attorney General Merrick Garland's highest priority to launch an investigation of the events that occurred on January 6, 2021 way back in the Spring of 2021 when the events, which had occurred on that day were still fresh in the American peoples' mind.  Garland's failure to do so is a typical example of the Biden Administration's incompetence—worse and much more damaging in many ways than the botched withdrawal of U.S. troops from Afghanistan.

The next question is that if Trump is indicted and convicted of a crime growing out of the events on January 6, 2021, or in the classified documents case in Florida, and if any such conviction is upheld on appeal, how should Trump be punished.  My recommendation is that the sentencing judge should give him a fair sentence recognizing that he is a first-time offender.  President Biden or his successor should then commute any prison sentence to house arrest at Mar-a-Lago, in the winter, and at Bedminster, in the summer, with the further condition that Trump not be allowed access to the media, the internet, or to issue any public statements, or be in contact with any foreign dictators, either by himself or through other people, just as if he was imprisoned.  The commutation should specify that it will terminate if these conditions are violated, and that Trump will then be imprisoned.

So, then, one might ask why not imprison Trump, if he is convicted, and if a conviction is upheld on appeal?  Trump may or may not deserve that, but the problem is that 40% of the American people lionize Trump and 51% are currently prepared to re-elect him over Joe Biden next year.  Silencing Trump and putting him under house arrest in two cushy resorts that he owns is an acknowledgement that the American people have not only pardoned Donald Trump for any crimes that he may have committed on January 6, 2021, or by mishandling classified government documents, but that they also seem to be prepared to elect him President over Joe Biden in 2024.  Silencing former President Trump and keeping him under house arrest is the harshest possible sentence the former President should receive.  Once this has been accomplished, President Biden should find himself a new and more competent Attorney General.