New Amicus Brief: Special Counsel Jack Smith Is Not An "Officer of the United States"

At most, Smith’s temporary position is properly characterized as a mere “employee.” To paraphrase Justice Scalia’s Morrison v. Olson dissent, this employee came as an employee.

I have filed an amicus brief in United States v. Trump (S.D. Fla.), one of two prosecutions brought against former-President Trump by Special Counsel Jack Smith. This brief, which is on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation, contends that Special Counsel Jack Smith is not an "Officer of the United States." At most, his position is properly characterized as a mere "employee." And as a mere "employee," Smith cannot exercise the broad prosecutorial powers of a United States attorney. If our position is correct, then this prosecution can continue, if at all, only under the normal supervision of the politically accountable United States Attorney for the Southern District of Florida. 

After our brief was accepted by the Court, the follow order was issued:

The amicus brief [410-1] is accepted for Court consideration. Should the Special Counsel or Defendants wish to file a separate response to the amicus brief, they may do so on or before April 4, 2024, in accordance with the Local Rules.

 Here is the introduction section of the brief:

Disputes about offices and officers generally result from two types of questions. First, there are procedural questions: how is the office created, how is a person appointed to that office, and how can the officer's tenure be terminated? Second, there are substantive questions: what is the scope of the officer's powers and what level of supervision or direction is the officer subject to? United States v. Trump  implicates both aspects of Special Counsel Smith's role.

Procedurally, Special Counsel Smith's position was (purportedly) created by the Attorney General to resolve a particular controversy. See 28 C.F.R. § 600.1. And this Special Counsel position will cease to exist when that investigation is completed. 28 C.F.R. § 600.8(c). This ephemeral position's duties were and are only "temporary" rather than "continuing and permanent." Lucia v. SEC, 585 U.S. 237, 245 (2018) (citing United States v. Germaine, 99 U.S. 508, 511–12 (1879)).

Furthermore, under longstanding and controlling precedent, a position that is not "continuous" is not an "office" at all. Id. At most, Smith's temporary position is properly characterized as a mere "employee." Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). Special Counsel Smith does not hold an "office," and he is not an "Officer of the United States." To paraphrase Justice Scalia's Morrison dissent, this employee came as an employee.

Substantively, the regulations vest the Special Counsel with "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." 28 C.F.R. § 600.6. A United States attorney is considered an inferior "Officer of the United States." United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000). However, a mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.

Both procedurally and substantively, the prosecutorial actions taken by Special Counsel Smith are ultra vires with respect to the Special Counsel Regulation. Likewise, Smith's exercising the powers of an "Officer of the United States" in his capacity as an employee of the United States violates the Supreme Court's Appointments Clause jurisprudence. While Smith's and his subordinate's past actions may be salvageable by the De Facto Officer Doctrine, his future actions can continue under the current regulations, if at all, only under the normal supervision of the politically accountable United States attorney for the Southern District of Florida.

As I've said before, there is always more "Officer stuff" to write about.

I am grateful for the assistance of my co-counsel, Michael O'Neill of the Landmark Legal Foundation and Michael A. Sasso of Sasso & Sasso, P.A. in Orlando.