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.

Comments

[windycityattorney]

I thought the special counsel already responded to this argument when Ed Meese and Calabresi made it?

What happened to the argument when it was made the first time?

[Riva]

I’d be more interested if the Court actually chooses to address the issue, but I fear they won’t.

[sLogan]

An amicus curiae (literally "friend of the court") is someone who is not a party to a case, but offers information that bears on the case, and has not been solicited by any of the parties to assist a court.

The cases against former President Trump are more than they appear to be. In that, a broader picture reveals ways and means to skirt, change, remove protections, process and procedures enshrined in the Bill of Rights for the people. If left alone uncontested and/or overlooked in this critical moment in time. There will be no restoring order and no restoring our Constitutional Republic.

A huge and magnificent thank you to the following names and others for caring about our country.
Professor Seth Barrett Tillman and the Landmark Legal Foundation, Josh Blackman a Constitutional Law Professor, Edwin Meese III Former Attorney General, Law Professors Steven G Calabresi, Gary S Lawson as Amici Curiae and others.

[steve sturm]

Question: stipulating you’re right, isn’t the workaround simply for DOJ to claim Smith is (or will be) working under the ‘supervision’ of a (friendly) US Attorney, who (surprise!) will ratify everything Smith is doing?

[windycityattorney]

I think the govt responded that he reports to the Attorney General himself and is subject to replacement, firing, supervision etc...

I read it awhile ago when this first came up. I don't have access at this moment to proper research tools to find the special counsel's response to this particular argument, but they made one. And since this argument (from Blackman) is essentially the same as the former argument (from Meese and Calabresi), I imagine the response would be the same (legally).

[Dr. Ed 2]

If you're right, what would preclude giving all of the USAs the same status so as to avoid Senate confirmation? I'm thinking of Rachael Rollins here -- who has since resigned, long story -- but she was only confirmed 51-50 with the VP's vote.

What would have precluded Biden from simply saying that she was under the supervision of the AG and hence the vote on her was not necessary?

For that matter, what would preclude a President from doing what Maine Governor Paul LePage did with his state secretary of education. LePage knew that the legislature would not confirm the new person, so he said that he (as Governor) was acting as secretary of education and she was merely an assistant and hence didn't need legislative confirmation (as only the actual secretaries do in Maine).

IANAA but operate under the principle that if a trick can be legally used, someone on the left or right will have already used it, and hence it doesn't.

[Noscitur a sociis]

If you’re right, what would preclude giving all of the USAs the same status so as to avoid Senate confirmation?

Nothing, if Congress passed a statute allowing it. Indeed, both the Attorney General (temporarily) and courts (permanently) can appoint U.S. Attorneys directly under some circumstances. See 28 U.S.C. § 546.

[Dr. Ed 2]

But my question is how does a statute -- even one passed by Congress -- supersede the "advice and consent" clause?

Can a Congress surrender the Congressional authority of future Congresses? Something tells me that it can't -- although it can choose to ignore specific trespasses upon its territory, without them becoming precedents.

[Noscitur a sociis]

I don't know, Dr. Ed, did you try reading it?

and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

[Jason Cavanaugh]

More trash from Blackman..

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.”

You could have just read 28 CFR § 600.3 (b):

A Special Counsel shall be appointed as a “confidential employee” as defined in 5 U.S.C. 7511(b)(2)(C).

However, a mere “employee” cannot exercise the broad prosecutorial powers of a United States attorney.

Allow me to retort:

The law quite literally states otherwise. https://www.law.cornell.edu/cfr/text/28/600.6

I missed your similar complaint about Special Counsel Hur, you fucking partisan clown.

[Dr. Ed 2]

If I am not mistaken, both Ds & Rs have been complaining about Special Counsels ever since Watergate. If both sides agree on something, could they possibly be right?

[Noscitur a sociis]

Dr. Ed is, predictably, mistaken.

[Dr. Ed 2]

Really?!?

[Roger S]

The Ds and Rs let the special prosecutor law expire. I don't why we still have them.

[Lee Moore]

1. The brief claims that Smith himself claims to be an inferior Officer of the United States, in his own brief.

2. I’m not sure that quoting the regulation establishes that the regulation is constitutional. Traditionally a little more work is required.

3. That said, the brief seems to me to be rambling and poorly organised. Twould have been better to engage directly with Smith’s claim to be an Officer and explain why he can’t be. And then explain why he can’t hold the powers he exercises if he isn’t an Officer.

4. As to Hur, Tillmans analysis - if correct - will be usable by Biden when Hur brings forward an indictment….oh wait!

[MSimon]

Hur uncovered evidence. Why does he HAVE to be the indicter?

[Bruce Hayden]

Hur, and every other special counsel, except for Mueller and Smith, have been Senate confirmed USAs.

[Noscitur a sociis]

Hur was not a U.S. Attorney when he was appointed as special counsel (he had been in private practice for nearly 2 years).

[Roger S]

Good point, but Hur just wrote a report. Smith is actually prosecuting someone.

[Riva]

Did Hur even convene a Grand Jury?

[Bruce Hayden]

That doesn’t help determining whether that statute is Constitutional. What you, and it, have to confront is that indicting and prosecuting criminal cases requires that the decision to do so be the responsibility of a Senate confirmed Officer. The statute can’t get around that. It can’t just cut the special prosecutor loose, and let him do what he wants. AG Garland appointed him, and is responsible for his actions. And he is 7th in the line of succession, and Biden’s 4th ranked Cabinet member. That’s the problem.

Some more thoughts. This motion was filed with the Trump appointed judge in FL. And one of the things that they suggest is that the only way that this could be legitimized is to move the prosecution to the SD FL USA, who has jurisdiction over cases in their district. How is that going to work out? Leaving Smith, nowhere on the DOJ org chart, still in charge? She has already made clear that she didn’t approve of the case being run out of DC, when she forced the prosecution to discharge its DC grand jury. And doesn’t trust them either.

We shall see.

[Riva]

The regulations you cite reflect the unconstitutional authority that is being challenged. They are invalid as they purport to give the Special Counsel created by the AG the powers of a US attorney. The whole point of the amicus brief is a challenge to the unconstitutional authority exercised by that hack smith.

[LawTalkingGuy]

So is PACER going to be Josh's new personal blogspace?

[Noscitur a sociis]

What a deeply strange argument. U.S. Attorneys are themselves inferior officers subject to the supervision of the Attorney General. Why on earth would the constitution require a special counsel to be supervised by the former rather than the latter?

[Lee Moore]

As I understood the brief, Smith is currently exercising powers akin to those of a regular US Attorney, who are subordinate to the Attorney General and who must obey his orders, but in the absence of any particular orders, have their own capes and super powers and are fully entitled to fight crime without reference to the boss. But Tillmans argument is that only Officers of the US can have capes and superpowers and Smith is not one such.

Instead he is equivalent to an Assistant US Attorney, a mere capeless employee, whose spelling must be checked by a real US Attorney before each venture into court.

Thus if Smiths adventure is to proceed, the real US Attirney for South Florida must ACTUALLY supervise him in the same way that he would supervise an assistant US Attorney. The AG meanwhile sits in DC twiddling his thumbs and doesn’t actually supervise actual court cases.

Or something like that.

[Dr. Ed 2]

That's my point about why there is a need to confirm USAs -- although more elegantly written.

[Bruce Hayden]

Because they have no independence if a direct employee of the AG. He is the one legally making the crucial decisions. He is 7th in line of succession to the Presidency, and 4th in priority as a member of the President’s cabinet. Garland may not like it, but his job is highly political. And, if Smith is not a Senate confirmed officer (like Garland and his USAs are), then the Buck stops with AG Garland. He would have authorized the prosecution of his boss’ prime opponent in the election this coming fall, on what are, to many, bogus, LawFare derived charges. That’s about as political as it can get.

[Dr. Ed 2]

IMPEACH GARLAND -- and with the precedent established by the 2nd Trump Impeachment, he can be impeached & convicted even after he is no longer AG. So let's do it and not only humiliate him but ban him from any future Federal office...

It's long past time for MAGA to play hardball...

[Voize]

What, no call to do it with machine guns?

[Estragon]

Cmon don’t be a squish. Snowplows!

[David Nieporent]

Wouldn't that in fact be a squish?

[Estragon]

LOL. Maybe a splat

[Dr. Ed 2]

It would be a splat but you misunderstand my point.

The state has the right to rely on the use of deadly force when its authority is defied. The intent is not to splat the schmucks into the woods but instead to make it clear that it is prepared and willing to do so if they don't get out of the road.

[Estragon]

You need help. I hope you get it before you hurt yourself or someone else.

[David Nieporent]

The state has the right to rely on the use of deadly force when its authority is defied.

It actually does not. That would violate the constitution in most circumstances.

[Dr. Ed 2]

The hell it would -- the government has the power to quell riots.

[Dr. Ed 2]

Only if he runs from the cops.

[Pacific]

January 6 was hardball.

[Riva]

The constitutional arguments are pretty cogent and not strange at all. But what is strange would be applying the De facto Officer Doctrine to salvage the work of that hack Smith. One wonders how many US Attorneys in the SD of Florida have employed DC grand juries to investigate alleged federal crimes in Florida? (and I guess I have to point out that that’s sarcasm because if often escapes the dimwitted commenters) But aside from that, this doctrine was not even applicable in the Nguyen case cited in the brief, wherein the Court noted it was applicable only in cases concerning a “merely technical” defect of statutory authority. This ain’t that case. The independent counsel statute expired. There is no statutory authority and this “appointment” is grossly unconstitutional. Nothing Smith did is salvageable.

[Roger S]

Not only is Smith invalid, but Biden was not properly elected President. The election was stolen. Also AG Garland would be on scotus, but the seat was stolen. (But in that case, I agree with the theft.)

[MoreCurious]

And we all eagerly await the evidence submitted by Roger S that proves that "[t]he election was stolen." And at the same time, if we're lucky, maybe he'll explain why he didn't share his evidence in late 2020 when 60 or so courts looked into the claims of election theft. Anytime now, Roger.

[MSimon]

I watched election night 2020 - all night. I saw things. Counting room windows taped over during counting. A Water Main break - that didn't break. 3AM ballot deliveries. Republicans sent home, Democrats keep counting. Not enough to swing an election I have been told. Wasn't that what they told you? I listened to Chicago 1960 (WGN radio). The ballot boxes 'lost'. The ballot boxes 'found'. 2020 wasn't the first time.

[Pacific]

Sure, Kari.

[David Nieporent]

Should we have a new name for Amicus Trumpae briefs? This brief serves no function except to allow Trump to advance a campaign theme that he's being persecuted by Biden. (To be sure, Trump lies and says that anyway.) If accepted, it would require Garland to supervise the prosecution rather than saying he's letting Smith make independent decisions. That's all it would do.

[Roger S]

Trump is being persecuted by Biden.

The USA has a system where officials are accountable for what they do. It involves elections, appointments, confirmations, separation of power, etc. Maybe you do not agree with it, but it is appalling that Biden would so flagrantly violate it. He is essentially leading a coup or insurrection, in an attempt to interfere with the 2024 election. Maybe Trump will be elected, and then prosecute Biden for this.

[Dr. Ed 2]

Maybe we lynch Nieporent as well...

I keep saying that the middle shall cease to hold -- and that the left won't like what comes next.

The country could survive a stolen election -- both sides have done it over the years and we did survive. But we can NOT survive this ongoing lawfare crap and when the middle ceases to hold, schmucks like Nieporent are going to find themselves in increasingly tenuous positions.

Hey David, how'd the French Revolution come out in the end?

Enough said?!?

[Estragon]

“Maybe we lynch Nieporent as well…”

Are you drunk?

Lynch yourself you cunt

[Dr. Ed 2]

How DID the French Revolution come out in the end?

Clearly you are not bright enough to understand the point I am trying to make. Nor to learn from history.

[Estragon]

Where is EV and the civility standards? I’m flagging this.

[Rev. Arthur L. Kirkland]

Those civility standards were illusory, offered to try to provide cover for Prof. Volokh’s viewpoint-driven, hypocritical censorship. It might have worked, with some audiences, for a while, but it was bullshit from inception.

Some of the low-grade, partisan censorship still stands, though. It may get worse when the proprietor departs academia and starts operating as a paid mouthpiece for a right-wing message factory.

[Mr. Bumble]

Wow! Someone got their panties in a twist.

[Estragon]

Either the standards mean something… or they don’t. This is beyond the pale. I know where you stand Bumble.

[Dr. Ed 2]

Not to mention doesn't know the origin of words...

[Dr. Ed 2]

Maximilien François Marie Isidore de Robespierre was himself beheaded on July 28, 1794. That is a fact.

As is the fact that the origins of the words "lynching" and "lynch's law" are likely not what you think they are.

"The term "Lynch's Law" was used as early as 1782 by a prominent Virginian named Charles Lynch to describe his actions in suppressing a suspected Loyalist uprising in 1780 during the American Revolutionary War."
https://en.wikipedia.org/wiki/William_Lynch_(Lynch_law)

[Estragon]

Calling for the lynching of other commenters deserves the ban hammer… or is RAK right???

[Rev. Arthur L. Kirkland]

That calls for a tune.

(Mr. Gilmour could use a better sound system or a few backup singers for the falsetto sections.)

On second thought, here is the album version, produced with plenty of opportunity for twiddling nobs, polishing, augmenting . . . I mean, faithfully presenting the artist's vision.

[Pacific]

We don’t like what has come before. You do. That’s the difference.

[Pacific]

Trump has so many real lawyers as amici, yet he retains the incompetent ones when money is at stake.

[Rev. Arthur L. Kirkland]

So far, the most effective member of Trump Litigation: Elite Strike For e has been one of his lawyers in Florida, Aileen Cannon.

She’ll end up just like Powell, Chesebro, Eastman, Ellis, Wood, Cohen, Clark, Giuliani, etc., though.

[Nige]

'The USA has a system where officials are accountable for what they do.'

Yes. The legal system. Same as everyone else.

[MoreCurious]

Biden's justice department is doing no more than holding Trump and his gang to the same legal standards that apply to everyone else in this country. If you think Trump is above the law, why don't you just say so, Roger?

[Bruce Hayden]

And that is why Trump is being prosecuted for possession of (likely formerly) classified documents that he had the plenary authority to declassify and to designate as personal papers, while in office. Documents under lock and key by the Secret Service. While both Hillary and Biden retained classified documents that they never had the power to declassify or to designate as personal papers, stored in insecure locations, and the DOJ decided not to prosecute. A DOJ in all three cases run by a Dem appointed AG at the time. Hint - it’s called Selective Prosecution.

[David Nieporent]

Once again: every word of this is a lie, except where it's just irrelevant. Taking them in order of your statements:

1) Trump is not being prosecuted for possession of classified documents (formally or currently). He is being prosecuted for refusing to return documents, lying about it, and then covering it up.
2) They are not "likely" formerly classified. There is not a snowball's chance in hell that they are formerly classified.
3) It doesn't matter whether they're classified, because them being classified is not an element of the offenses of which he is charged.
4) He had no "authority" to "designate them as personal papers." Congress passed a statute defining what documents were personal and what was presidential. He had the obligation to separate them according to the law, not according to his personal whim.
5) They were not "under lock and key by the Secret Service." Yet another lie. When a president leaves office, he gets Secret Service protection; they do not act as his private security guards.
6) Biden and Hillary in fact did have the power to declassify documents.
7) DOJ decided not to prosecute because neither Biden nor Hillary (nor Pence) did the things that Trump did.
8) Hint: A competent lawyer knows that it isn't called selective prosecution. An honest lawyer would therefore not say that it was.

[Dan Schiavetta]

+1

[Dr. Ed 2]

An honest CITIZEN would say that it is both selective prosecution and bullshyte.

And don't forget how the French Revolution ended...

[MSimon]

How about the no fraud fraud case in NY?

[Rev. Arthur L. Kirkland]

Does your family believe in an afterlife, and that your mother is therefore practicing her despicable bigotry out there somewhere?

[Dr. Ed 2]

It would raise the stench factor and show that this is a political persecution.

[John F. Carr]

Judge Chutkan refused to accept amicus briefs in Trump's D.C. case, writing "Although Courts have in rare instances exercised their discretion to permit third-party submissions in criminal cases, neither the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing of amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedures course by permitting this filing."

[Bruce Hayden]

The Dem nominated DC judge wasn’t going to grant the motion anyway. The Trump nominated FL judge might. So, probably wants extra ammunition in case she decides to grant it.

[DIsrobing]

I liked Volokh Report more when it was just a mutual admiration society for weird porn aficionado Alex Kozinski.

Now it seems it is just a constant clown show.

[Rev. Arthur L. Kirkland]

These guys are entitled to publish what they wish.

It's a low-character and therefore natural move to associate their employers with this flaming shitstorm, though.

[Rev. Arthur L. Kirkland]

Landmark Legal?

The stains who nominated Rush Limbaugh for a Nobel Peace Prize, funded by well-known low-budget motel fan, indolent inheritance junkie, and Vince Foster-level conspiracy theorist Dick Scaife?

[Stephen Lathrop]

Perhaps Congress should create by law a commission to be awarded to special counsels, thus:

"To all those to whom these presents may come, greetings. Know ye that [name in full], having earned the especial faith and trust of the jointly sovereign People of the Untied States, has been appointed by them, with the advice and consent of the Senate of the United States of America, a judicial officer plenipotentiary. Disobey him at your peril."