The Volokh Conspiracy
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Special Counsel Jack Smith Responds to Blackman-Tillman
No matter how you slice it, Smith cannot exercise the powers he purports to exercise.
[This post is co-authored with Professor Seth Barrett Tillman.]
Last month, we 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. Our brief argued that Special Counsel Jack Smith is not an "Officer of the United States." At most, his temporary position is characterized as a mere "employee." As a result, this mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.
Smith filed a response to our amicus brief. Smith argued that the Blackman-Tillman brief is in conflict with an amicus brief filed by Former Attorney General Edwin Meese III, Professors Steve Carabresi and Gary Lawson, and organizations. Smith wrote:
Professor Seth Barrett Tillman and others filed (ECF No. 410-2) an amicus brief ("Tillman Amicus") in support of defendant Donald J. Trump's claim (ECF No. 326 at 1-7) that the Special Counsel lacks the legal authority to prosecute this case. Taking the polar opposite view from Former Attorney General Edwin Meese III and others, who argued in a separate amicus brief ("Meese Amicus") that the Special Counsel is a principal officer under the Constitution, see ECF No. 364-1 at 14-16, the Tillman Amicus's central contention is that the Special Counsel is not an officer at all, but instead an employee who is forbidden from exercising the authority vested in the Special Counsel by law.
A similar claim was made in an amicus brief filed by a group of constitutional lawyers and "state democracy defenders." This cohort includes Professor Laurence Tribe, George Conway, Patrick Fitzgerald, Donald Ayer, and Christine Todd Whitman. The amicus argues that the Blackman-Tillman brief is "inconsistent" with the Meese brief.
Smith, and the amicus brief, are incorrect. The Blackman-Tillman and Meese briefs are in substantial agreement with one another.
The Meese brief argues that for the Special Counsel to exercise the powers he is exercising, the Special Counsel must be a principal officer. However, the Special Counsel is in actuality something else. The Meese brief argues that the Special Counsel is merely an inferior officer. And, the Meese brief contends, that inferior officer cannot hold the powers granted to the Special Counsel.
The Blackman-Tillman brief approaches the same issue from a different perspective. We contend that for the Special Counsel to exercise the powers he is exercising, he must be an officer. And to be an officer, a position must have continuity. However, the Special Counsel is in actuality something else. We argue that the Special Counsel is merely an employee, because his position is not continuous.
The Meese brief, and the Blackman-Tillman brief, agree that Special Counsel Jack Smith is purporting to exercise powers he cannot exercise. Indeed, the Meese brief expressly argues that "The authority exercised by [Smith] as a so-called 'Special Counsel' far exceeds the power exercisable by a mere employee." The Meese brief added, that Smith "is acting as an officer, but aside from specific offices listed in the statutes discussed above, there is no office for him to hold."
The Meese brief argues that, at best, the Special Counsel is an inferior officer. As such, the Special Counsel cannot exercise the powers he purports to exercise. The Blackman-Tillman brief makes an almost identical point. Our position is, at best, the Special Counsel is an employee. If that characterization is correct, and we think it is, then the Special Counsel certainly cannot exercise the powers he purports to exercise.
