The Supreme Court Should at a Minimum Ask Jack Smith to Brief the Question of the Constitutionality of his Appointment

United States v. Trump

As readers of this blog know, I think Special Counsel Jack Smith was unconstitutionally appointed and that he lacks standing to petition the Supreme Court for certiorari before judgement.   But what if four justices disagree and vote to grant certiorari?  In that case, I think the Supreme Court should ask Special Counsel Smith to brief the question of whether he has standing and whether his appointment was constitutional?

Could an Attorney General appointed by President Trump appoint, as inferior officers, shadow U.S. Attorneys in Cook County, Illinois, or in New York State thus circumventing the requirement of Senate confirmation in two States which have two Democratic Senators?

Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?

The Supreme Court needs to know what the Biden Administration's position is on such questions.  Moreover, it needs to know if Jack Smith's appointment is constitutional what limits, if any, there are on the Attorney General's power to circumvent Senate confirmation.  As former Attorney General Ed Meese, Professor Gary Lawson, and I all argue in our amicus brief, we do not think that the Attorney General has any power at all to appoint inferior officers as powerful as is Jack Smith.

Comments

[hobie]

Stop being a crackpot, Calabresi and get over the fact that special counsels are given special powers. If we left their appointment to the partisan lunatics of Congress nothing would ever get done. Their appointment is no doubt designed to avoid politics and partisanship: the hallmarks of Congress.

[NvEric]

The crackpots are already here, as usual.

[ReaderY]

The Supreme Court should sua sponte raise a question not presented which is not jurisdictional?

What planet does this guy think he’s on? When will he return to his home world?

[mse326]

I don't know that I agree with his position, but standing is jurisdictional

[TheAmazingEmu]

Standing of the appellant and appellee, not the special counsel who represents the appellant. There's no question that the United States has standing. The question is whether Jack Smith is a duly appointed representative of the United States. That being said, the Supreme Court has appointed people to represent a party's position even when the elected representative doesn't want to, so this can't be a standing issue. The Court could literally appoint Jack Smith themselves if they wanted to in order to address this issue.

[ReaderY]

The fact that the Supreme Court itself periodically appoints special counsel kind of undermines the argument that heads of departments lack the power to do so.

[Noscitur a sociis]

.

As readers of this blog know, I think Special Counsel Jack Smith was unconstitutionally appointed and that he lacks standing to petition the Supreme Court for certiorari before judgement.

Wow, I didn’t know that. You’re telling me now for the first time.

[epsilon given]

It sounds like you don't read this blog regularly.

(Full disclosure: I don't follow this blog closely, either, and this is probably the first time I've seen these concerns about Jack Smith, on this blog, or otherwise, beyond the noise of Jack Smith's name vaguely showing up in the news every now and then while I focus on other things.)

[epsilon given]

Huh, I was right: this issue was covered in a previous blog post.

https://reason.com/volokh/2023/12/20/special-counsel-jack-smmiths-appointment-is-unconstitutional/

It looks like this particular blog post was posted yesterday, so it's not as if it's an obscure blog post from a year (or even just a month) ago!

I can't help but wonder what other material I'm missing on this blog, because I don't have the time to read it daily....

[Sarcastr0]

[It was sarcasm.]

[Noscitur a sociis]

https://knowyourmeme.com/memes/wow-i-didnt-know-that-youre-telling-me-now-for-the-first-time

[Noscitur a sociis]

.

Could an Attorney General appointed by President Trump appoint, as inferior officers, shadow U.S. Attorneys in Cook County, Illinois, or in New York State thus circumventing the requirement of Senate confirmation in two States which have two Democratic Senators?

Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?

The Attorney General can appoint a U.S. attorney if the position is vacant, see 28 U.S.C. § 546, and President Trump could fire a senate-confirmed U.S. Attorney who refused to go along with his vermin-investigation directive, thus creating such a vacancy. So I’m not sure this is the gotcha you think it is.

[not guilty]

What authority does SCOTUS have to address sua sponte an issue which no party has raised in the court(s) below and which the lower court(s) have not addressed?

The Supreme Court opined in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 721 (2014):

We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n2, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981); Bell v. Wolfish, 441 U.S. 520, 532, n.13, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Knetsch v. United States, 364 U.S. 361, 370, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960)[.]

[SRG2]

Though this would not preclude one of the right-wing defenders of the faith from deciding that the instant case was a legitimate exception to the general rule, IMO.

[Mr. Bumble]

So the court has never addressed an issue sua sponte?

[ThomasD]

"What authority does SCOTUS have to address sua sponte an issue which no party has raised in the court..."

The authority they have to do so is...

wait for it...

Sua sponte.

[ThomasD]

Also, when a court acts sua sponte they are, by definition, not "entertaining" arguments from the involved parties. Otherwise they wouldn't be acting sua sponte.

Nice misdirection though.

[Life of Brian]

Cute crop-quote there at the end!

. . . and there are strong reasons to adhere to that practice in these cases.

At first I thought you might have somehow inexplicably skimmed over the qualifier ("do not generally") early in the sentence, but your deliberate choice to snip the above language seems to show your state of mind clearly enough.

[Purple Martin]

Calabresi was a crank when he brought this up in 2017 with the Robert Mueller special counsel appointment, to the laughter of everyone.

He remained a laughable crank when he brought it up in a looooonnnggg, repetitive post yesterday, then in a shorter though still repetitive post earlier today, and in this even shorter post an hour ago.

In post length if not frequency, the trend is encouraging.

[epsilon given]

Is he a crank because he's wrong? Or is he a crank because he's right, but no one in power cares?

Unfortunately for the Constitution and the Rule of Law, I strongly suspect he's a crank for the latter reason, rather than the former.

[mydisplayname]

While I agree that the special council appointment was unconstitutional and agree that the Court does not "generally entertain arguments that were not raised below and are not advanced in this Court by any party," I see no great harm in asking
"Special Counsel Smith to brief the question of whether he has standing and whether his appointment was constitutional."

As a few Op-Eds have noted, Democrats, whom I will trust as I will adders fanged, have willingly consumed a gigantic pot of beans and the partisan in me says "Let it work!" -- the smell of the petard is guaranteed to be suitably foul and offensive.

So, the Court should hesitate before prematurely interfering... it could indeed later delve one yard below Democrats' partisan mines and blow the soulless parti pris wretches at the moon. But the patriot within me suggests an alternate path, perhaps in this matter the one Calabresi now suggests and in another matter the one Lessig now suggests.

[huskerdru]

The smell of the small bomb (petard) will be foul? How do you determine the smell of a bomb? Are you laboring under the common misconception that “petard” means something else?

[Krayt]

Petar literally means to break wind, from pet, to expel intestinal gas.

It's an amusing interpretation with that phrase.

[huskerdru]

That’s interesting, but, I think, demonstrably false:

https://www.merriam-webster.com/dictionary/petard

I can’t find any source with any other definitions that don’t have to do with bombs or explosions.

[Daddyhill]

I'm afraid Calabresi's post looks like the whining of a Federalist Society hard-shell who wants to see Trump appointing yet more reactionary SCOTUS justices and lower courts judges. He isn't helping himself by aligning with Ed "No-bid? No worries!") Meese. Meese was an unindicted co-conspirator in the Wedtech debacle who resigned as Attorney General in 1988, uttering the same complaints about political prosecutions that Donald Trump uses now.

Of course, "circumventing the requirement of Senate confirmation" is something that Trump mastered during his presidency by appointing friendly stooges to "acting" positions not requiring Senate confirmation, and then somehow never getting around to appointing permanent department and agency heads.

To "mydisplayname" I state with confidence that most of us have read Hamlet once or twice and don't require your virtually unintelligible precis of that scene.

[Noscitur a sociis]

.

I’m afraid Calabresi’s post looks like the whining of a Federalist Society hard-shell who wants to see Trump appointing yet more reactionary SCOTUS justices and lower courts judges. Meese.

https://reason.com/volokh/2023/09/16/steve-calabresi-donald-trump-should-be-on-the-ballot-and-should-lose/

Let me, however, be very clear about one thing. I am a Never Trumper. I will vote for any Republican in the primaries over Trump or, if necessary for the Democratic Party's nominee for President over Donald Trump. I am a Never Trumper because of the former President's behavior on January 6, 2021 when he stirred up a crowd, started a riot on Capitol Hill to disrupt the counting of electoral votes, and then declined to call off the riot either with a Tweet or by calling out the National Guard. Instead, Trump watched the riot unfold on television approvingly as the rioters called out "Hang, Mike Pence." At the time, he was still the nation's Law Enforcement Officer in Chief with a constitutional obligation to "take Care that the Laws be faithfully executed." Trump's failure to stop the riot and the efforts he knew of to hang his own Vice President was nothing less than a High Crime and Misdemeanor.

As a result of Trump's behavior that day, I wrote an op-ed supporting his second impeachment for the commission of a High Crime and Misdemeanor. I urged that Trump be disqualified from ever holding any federal office again. The Senate foolishly failed to convict and disqualify Trump, and so now he is running for re-election. Let me make it crystal clear that I will vote for any Republican and for any law-abiding Democrat, including certainly Joe Biden, in 2024, if Trump is the Republican nominee for president.

[David Nieporent]

.

I’m afraid Calabresi’s post looks like the whining of a Federalist Society hard-shell who wants to see Trump appointing yet more reactionary SCOTUS justices and lower courts judges.

Once again: Calabresi is anti-Trump.

[Stephen Lathrop]

Please, help this legal layman out. I had not understood that the notion of, "standing," was so broad. Is it possible a criminal prosecutor must show a distinguishable personal interest in the outcome of a criminal case before a court can hear it? If there is anything to what Calabresi is complaining about, I suppose I must be asking my question wrong. Any help?

Also, no matter how muddled on questions of law I may be, I am having trouble getting used to the notion that a law professor named Calabresi—let alone a nephew of the celebrated Calabresi—would publish legal comments with an eye to muddle insight for everyone else. What is going on here?

[Stephen Lathrop]

On second thought, maybe I get it. Is this supposed to fit with Calabresi's insistence that Jack Smith is a mere private citizen, not a prosecutor at all? So Smith, who brings a private prosecution, does not speak for the People, and thus to be heard at all must first demonstrate a private interest in the outcome?

And as so often happens when right wingers posit pure crank, he styles his crank's insistence as if it were not even entangled in controversy, but is instead something everyone is obliged to accept as a premise—just customary legal doctrine. Is that it? If that is it, why do right wingers suppose that is a persuasive style of argument, instead of an open invitation to ridicule?

The more I reflect on this, the more help I need.

[Doug Heffernan]

You're right. There is not nothing there, despite calabresi's feverish "null and void" rhetoric. He's pressed this issue for well over half a decade now, so there is lot's of old stuff to read/watch if you like. Some of it is linked at the top of the these links:

https://www.lawfaremedia.org/article/dc-circuit-considers-constitutionality-bob-muellers-appointment

https://www.lawfaremedia.org/article/terrible-arguments-against-constitutionality-mueller-investigation

Calabresi dismisses the dc-circuit ruling as not having addressed his arguments in a "sustained" manner. Beats me, but they were considered.

[Stephen Lathrop]

Next up for Calabresi? How about a treatise on how appointment of Jack Smith somehow implicates the major questions doctrine?

I do hope I have not inadvertently created a spoiler, by the way.

[arpiniant1]

Ed Meese? You use Ed Meese to bring gravitas to your filing?
Yow

[TheAmazingEmu]

I replied to someone, but I'll write it separately. This isn't an issue of whether the parties have standing and standing isn't generally a question about the attorney, but about the named parties (the United States and Donald Trump). Both of those parties unquestionably have standing. There are also arguments that could be raised about whether the attorney representing the United States has the authority to represent the United States. But this isn't a jurisdictional issue, meaning it can be waived if not raised. At a minimum, the Supreme Court should not raise the issue sua sponte. It risks taking an important issue that needs to be addressed and clouding it with other issues that can be addressed at a later date. The Supreme Court can address the issue presented and deal with any other issues after they have been raised by the parties in the proceedings below and a court has ruled on them.

[ThomasD]

Procedural issues are due process issues. The idea that we should ignore due process until we've decided substantive issues is a novel argument to say the very least.

[TheAmazingEmu]

Even Due Process issues can be waived if not asserted by the parties and Due Process claims are routinely not subject to an interlocutory appeal and must be appealed from a final order.

[ThomasD]

Entirely true but also entirely inapt.

[Noscitur a sociis]

No one, including Trump himself, has suggested that due process requires he be prosecuted by someone more closely aligned with the president.

[jeffgerleman]

I have certainly read a lot of pompous ridiculous things by Democratic members of Congress & left -leaning members of academia regarding Gaza recently, so it's nice to see the same from the far-right for balance.

All of this focus on lack of specific statute is interesting. I was thinking that there is something called 'common law.' Sometimes, the 'there isn't a statute' argument doesn't mean much. As more than one person points out, this position has been raised since Mueller, and for anyone who missed it: NO court, appellate or otherwise, cares. Maybe it had/has something to do with Mr. Mueller's previous career - and the same applies to Smith.

Next, the author FINALLY mentions that at one point in time, Mr. Smith was indeed acceptable counsel, but lost that status when he took a sketchy job in a faraway land where weed has been allowed for decades! Apparently, the US court system views his service there as a bit different than working as an ambulance chaser.
Lastly the magnanimous author graciously tells the current President how he should treat Mr. Trump because so many darn people LIKE Mr. Trump. This is what passes for a law professor these days?
Also, calling Mr. Smith a 'Queen' was snark that one of the characters in "Mean Girls" would be proud of.

Thanks for the entertainment.

[Nige]

'Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?'

No doubt he'll give it the ol' college try.

[myself]

Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?

Couldn't Trump have his AG direct a regular prosecutor to go on witch hunts? AFAIK the "special" thing about a special counsel is they have a lot more independence.

Could the AG appoint a complete partisan hack to the position? Sure, and that's a concern. But the fact the AG did that would mean the Senate appointed a complete partisan hack to the position of AG, and that would be a much bigger concern.