Special Counsel Jack Smith Lacks Standing to Defend the D.C. Circuit's ruling on Presidential Immunity in the Supreme Court

Defendant standing must exist at all stages of any litigation and must be raised by the justices of the Supreme Court even if the litigants themselves fail to raise it

On Thursday, April 25th the Supreme Court will hear oral argument in Trump v. United States. I have signed an amicus brief in this case, along with former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, and with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland.  Gene Schaerr filed the amicus brief, which grows out of a law review article that Gary Lawson and I published: Why Robert Mueller's Appointment as Special Counsel was Unlawful, 95 Notre Dame. Law Review 87 (2019). We claim that because Jack Smith was unconstitutionally appointed, he therefore lacks standing to defend the order of the D.C. Circuit denying Donald Trump's claim of inherent presidential immunity from criminal prosecution for acts taken while serving as President. Smith can no more defend the lower court order than can any random person picked off the street.

Jack Smith is in the eyes of the law a private citizen, and all the acts he has taken since his appointment on November 18, 2022 are null and void. This is as true of the acts Smith has taken in the Florida classified documents case, against Donald Trump, under the eye of the 11th Circuit, as it is of the actions Smith has taken in the D.C. District Court case, against Trump involving the events of January 6, 2021. All those he has imprisoned or entered into plea bargains with are free. Indeed, Jack Smith can be sued in torts for unconstitutionally depriving people of liberty and property.

The absence of standing to defend the D.C. Circuit's opinion below on Smith's part cannot be waived by Donald Trump's or anyone else's failure to raise it sooner. And, the absence of defendant standing must be raised sua sponte by any federal judge or Supreme Court Justice who Jack Smith purports to appear before in any case whether the case involves Donald Trump or anyone else. Standing must exist at all stages of litigation including throughout all authorized appeals and habeas corpus petitions.

We argue that under the Constitution only Congress can create the Office of Special Counsel to which Jack Smith was appointed. The power to create federal offices is an exclusively congressional power and may not be usurped by the executive branch.  Congress, however, may by a clear law, vest in the Head of a Cabinet Department the power to create inferior offices and officers. It has done so for example for the Departments of Agriculture, Education, Health and Human Services, Transportation, and for the Department of Justice, but specifically only for the Bureau of Prisons, and not more broadly for other DOJ components.

Why would Congress deny the Attorney General the broad power it gives to other Cabinet Secretaries to create inferior officer Special Counsels? The answer is that Senators have always insisted on having a say in the selection of the U.S. Attorneys who can bring prosecutions against their political allies in their home States.

Nor would it be wise to give corrupt Attorneys General -- like those who served for Presidents Grant, Harding, Truman, and Nixon -- unlimited power to create Special Counsels to investigate their political enemies. Congress has wisely allowed the Attorney General to designate any one of the 92 Senate-confirmed U.S. Attorneys to be a Special Counsel to investigate high-level wrongdoing vigorously nationwide outside the jurisdiction of their home Districts. Thus, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, was appointed a Special Counsel to prosecute wrongdoing in the District of Columbia by Scooter Libby, then-Vice President Dick Cheney's Chief of Staff.  Libby was convicted and jailed. But, Congress has never given the Attorney General the power to turn private persons, like Jack Smith, neither nominated by the President nor confirmed by the Senate into "Special Counsels" with more power than Senate-confirmed U.S. Attorneys to prosecute the enemies of the President or the Attorney General.

It is critically important to American liberty that we read the organic statutes setting up the Justice Department as only authorizing the appointing of presidentially nominated and Senate-confirmed U.S. Attorneys to be Special Counsels. Our amicus brief, which we will now post on SSRN on the internet, examines the text of all of the Justice Department's organic statutes and proves conclusively that they are narrower than the organic statutes that create the Departments of Agriculture, Education, Health and Human Services, and Transportation, which allow the Heads of those Departments unlimited power to create inferior offices and officers.

Thus, the Agriculture Secretary "may appoint such officers and employees *** and such experts, as are necessary to execute the functions vested in him[,]" 7 U.S.C. 610(a). In contrast, the most empowering law cited by Attorney General Garland is 28 U.S.C. Section 515(a). It says that: "The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States Attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought."

This section allows the Attorney General to appoint a Senate-confirmed U.S. Attorney to have nationwide jurisdiction to prosecute high level wrongdoing, as the Attorney General properly did when he appointed U.S. Attorney David Weiss of Delaware to be Special Counsel for the prosecution of Hunter Biden, allowing Weiss to file charges anywhere in the U.S. and not only in Delaware. This section does NOT authorize the appointing of private citizen Jack Smith to be an inferior officer Special Counsel. Instead, it concerns the powers of people who have been properly appointed to Justice Department offices "under law" pursuant to other statutory provisions.

This is made clear by 28 U.S.C. Section 543. This section provides that "(a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses committed in Indian country." Section 543 is a grant of explicit inferior officer appointment power to the Attorney General, but only to appoint "attorneys to assist United States attorneys" not to replace them as Jack Smith's appointment has done!

Federal prosecutions of former President Donald Trump must be done in a constitutional way no matter how much he is hated for his actions of January 6, 2021 or for any other reason. Here, Special Counsel Jack Smith is an Emperor who wears no clothes.

Comments

[Longtobefree]

So what?
As long as it involves hurting Trump, it is all good.
Don't let that silly old constitution thing get in the way.

[Mr. Bumble]

You mean like the non trial Senate trial of impeached DHS Sec Dorkus?

[ObviouslyNotSpam]

Did Steve really write this?

[santamonica811]

Why does this surprise you. He's proven to be a whore on matters regarding Trump. I find his post here not the least bit surprising. Hopefully, he'll get (if Trump wins in November) that appellate judgeship he so desperately wants and that he was willing to sacrifice his integrity for.
#pathetic

[ObviouslyNotSpam]

No, I meant it is uncharacteristically (as of late) lucid.

[Mr. Bumble]

Aw, you broke santamonica811's bubble.

[Estragon]

Never gonna happen (the judgeship), even if Don Snoreleone gets back in. Too old. He’ll be almost 67 next January.

[Kazinski]

Interesting argument, I wonder if it will get any traction.

Hunter Biden has also argued that Weiss was not lawfully appointed as special counsel, that of course was shot down, but what is interesting is Weiss' response to Hunter's assertion mirrors Calabresi's argument:

“For 150 years, the Attorney General has had plenary authority to empower one of his officers to litigate particular cases in federal court,” Weiss wrote in a court filing Friday. “Defendant offers no persuasive reason as to why that authority has not been properly exercised here.”
https://www.cnn.com/2024/03/08/politics/hunter-biden-david-weiss-response/index.html

I don't think its disputed that Smith was not one of Garland's officers when he was appointed special counsel. Of course the only rebuttal needed is for Garland to show the statute that allows him to appoint Smith as an "officer" without an appointment by the President and Congress's confirmation.

[Magister]

Why would Jack Smith be an officer?

[Lee Moore]

Well, perhaps the answer is to be found in this legal filing

https://www.documentcloud.org/documents/24484362-trump-mal-doc-405

by....

.....Jack Smith

[Magister]

Great to know that Jack Smith's assertions are the final word on everything. But it asserts that Smith is an inferior officer supervised by a superior officer; no reason he had to be an officer confirmed by the Senate when he was appointed as Special Counsel.

[Lee Moore]

As I understand it - which may not be very well :

1. he must be an officer in order to exercise the powers that he exercises - if he is a mere employee then he is operating "ultra vires"
2. thus his claim to be an officer in his filing
3. if he is an officer, he must either be confirmed to an office by the Senate (or be a recess appointment) or Congress must have passed a law entitling the Attorney General to appoint inferior officers to the office he occupies
4. it is suggested that he has not been duly confirmed (or recess appointed) and that there is no relevant law extant

I cannot offer an opinion on whether any of this is correct, but that seems to be the argument.

[bacchys]

Appointing a DOJ lawyer wouldn't negate the conflict of interest for the DOJ in prosecuting cases. Special counsel are appointed to mitigate a conflict or perceived conflict. Perhaps the first Special Counsel appointed after Reno promulgated the new regulations was former Senator John Danforth. Who wasn't an appointed officer.

[showtimeUCLA]

The prosecutor cannot be independent of the executive. The president and AG must retain prosecutorial authority over the United States. Otherwise, there would be no political accountability over a quintessential executive function. In cases of conflict of interest, the AG can bring in an impartial assistant AG from outside D.C. to create some bridge between the conflict and the prosecutor. The AG can also appoint a private attorney, like Jack Smith, to serve under the authority of an assistant AG.

[David Nieporent]

The argument is utterly frivolous even if the arguments about Smith's appointment were correct. Smith is not a party to the case, and therefore his "standing" vel non doesn't exist. Prosecutors neither have nor lack standing. They might have or lack legal authority, but that's an entirely different concept than standing.

[Kazinski]

Your argument seem just as frivolous to me. Once you concede "the arguments about Smith’s appointment were correct", then Smith's status is nothing more than as an amicus.

However I don't think there is any probability the case will be thrown out on that basis, in this hearing.

Best case for Calabresi's argument is one of the justices will ask a question or two about it, or put a line or two in a solo concurrence or dissent, flagging the issue for more attention in its own motion in Florida or DC and then a cert petition.

[Bruce Hayden]

I think that the two cases might be legally different. The original pleadings in FL were signed by Associate Special Counsel Jeffrey Bratt, whose day job is (or at least was, at the time) the branch chief of the DOJ’s Counterintelligence and Import Control Branch, which reports to the AAG for National Security, who is a Senate confirmed Principal Officer.

[Noscitur a sociis]

You’ll never guess who Jack Smith reports to!

[Bruce Hayden]

It’s got to be AG Garland.

[Noscitur a sociis]

Though the point was pretty elementary, it seems to have eluded you.

If Jack Smith’s appointment were unlawful, that would be a problem. But lack of standing would not be the way of describing the problem.

[Stephen Lathrop]

Kazinski, is the issue by what means Smith was appointed, or is the issue whether he wields unfettered and uncontrollable power? If it's the latter, then the answer is no. Smith reports to the Attorney General, who can fire him. Nobody thinks Merrick Garland was improperly appointed.

[David Nieporent]

Your argument seem just as frivolous to me. Once you concede “the arguments about Smith’s appointment were correct”, then Smith’s status is nothing more than as an amicus.

First, I did not "concede" any such thing.

Second, even if I had — see, that's similarly not a concession — your conclusion is wrong. You, like Calabresi, are confusing the attorney for the party. Smith represents the U.S. The U.S. is a party. There is no law, procedure, or mechanism to convert the U.S. or its attorney into an "amicus."

Let's say in the middle of one of the lawsuits against Trump it's discovered that the person representing Trump isn't actually a licensed attorney at all. Does that make Trump an amicus in the case? Does it make his unlicensed lawyer one? Does it mean Trump is subject to a default judgment in the case because his non-lawyer was acting illegally and therefore everything he filed is automatically stricken? (No, no, and no.)

[Bruce Hayden]

The better question maybe is whether he can legally represent the US in court. Can the US be represented by a mere employee, or must they be an officer (e.g. USA, AUSA)?

[Noscitur a sociis]

Once again, AUSAs are not officers.

[Stepped Reckoner]

The argument is anything but “utterly frivolous.” The argument is a serious problem for the Special Counsel’s case and has already clearly altered what the Special Counsel has done on appeal. Jack Smith isn’t signing the appeal papers; instead an attorney who, unlike Smith, actually is an employee holding a permanent position at the Department of Justice, who also is currently working for the Special Counsel’s team, is signing them. That may not make any legal difference, but there are potential arguments that it might, and it is very unlikely that this would be happening if not for this issue.

Jack Smith is not a named party, but the “United States” is. The Special Counsel’s office is supposed to be bringing this case for the United States. To be sure, when a private citizen or company who is a party to a court case is represented by counsel, no one generally thinks of the counsel as a party to the case. But here it is a different situation: it is the government as a party, bringing a criminal case on behalf of the people, by a supposedly independent office not being supervised in any way by the rest of the government yet embodying the “United States.”

One can certainly question Calabresi’s presentation of this issue as one of “standing.” Neither his amicus brief in Trump v. U.S. nor his 2019 law review article about Robert Mueller’s appointment characterizes this as “standing.” It is probably that he did not clearly think of it in those terms till now, perhaps because he works in the proverbial ivory tower and doesn’t litigate for a living. He has perhaps realized that he had not thought as clearly as he might have until now about the problem that an issue raised only by an amicus generally need not be reached by the Court unless it is a non-waivable issue like subject matter jurisdiction. He is correct that standing (non-prudential Article III standing at least) is a non-waivable subject matter jurisdiction question. The present appointment issue may be better characterized as going to justiciability rather than standing. But the fact is that justiciability is also non-waivable and courts reach it even when only amici raise it. See, e.g., Chadha v. INS, 634 F.2d 408, 411-12 (9th Cir. 1980) (per Anthony Kennedy, J.) (deciding justiciability issue raised by amici), aff’d, 462 U.S. 919 (1983).

Calabresi probably thought that Trump’s counsel would raise this issue more strongly in Trump’s briefing, and regrets not having raised the point about this being a non-waivable issue more explicitly in the amicus brief; and he is doing what he can now to remedy that. To be fair to him, the briefing schedule was tightly compressed, the Special Counsel’s office is a rara avis constitutionally speaking, and the meaning of the Appointments Clause is an issue that has been in flux in the Supreme Court, so these are not easy issues, and they are important.

Ultimately, snarking about the exact language Calabresi uses to raise the issue smacks of semantics, and conclusory dismissal of the argument is political, not legal. If it is more important to get this right than to score political points, then what matters is whether Special Counsel Jack Smith is constitutionally appointed in this case to bring this case as prosecutor for the “United States.”

[NvEric]

Of course each post here, to the detriment of Calabresi, is political and so too are the legal troubles foisted on Trump.

[Noscitur a sociis]

But that’s just it. The United States clearly has standing in this federal criminal prosecution. Whether the guy supervising the prosecution (who, to be clear, works for the Department of Justice and is subject to the supervision of the Attorney General) is allowed to do that has nothing to do with standing or the Article III authority to adjudicate the case, and thus is subject to waiver.

[DaveM]

Interesting. If this accepted as a flaw, I presume a proper US attorney replaces him and the case continues? Or no?

[ObviouslyNotSpam]

4D chess, my friend: no, this is a kind of "sovereign citizen" argument, the only purpose of which is to muck up the works until the terrible danger of justice being done has passed.

[rivetjoint]

I thought team Manafort had the better of it, when it briefed the lack of legal authority by DOJ to create the 'special counsel regulation.' The statute was allowed to expire (the explicit authority) and nothing in the organic DOJ authorization allowed the end around of creating the regulation from whole cloth. And then even if, not to follow its own rules in the appointment. Further, Judge Ellis might have been the man to grab this thorn, but alas. So here we are, everyone gets a special now. The wolf in wolf clothing as warned by Scalia.

[David Nieporent]

That was a lot of words that handwaved at the point and failed to grapple with it. It's not an issue of standing. Period. Therefore arguments that Smith lacks standing are frivolous. They're not even colorable. The U.S. obviously does not lack standing to prosecute someone for violating U.S. law. And Smith neither had nor lacked standing.

The reason Calabresi framed it that way is precisely because standing is nonwaivable and thus this — if valid — would be a successful gotcha that tanked the whole case.

But the fact is that justiciability is also non-waivable

That's fine, but what on earth does the question about Smith's appointment have to do with justiciability, either? Whether Donald Trump broke federal law — the actual issue in the case — is of course justiciable. I cannot repeat this often enough, apparently: Jack Smith is not a party to the case.

[bidensniffedme]

@Stepped Reckoner-This has to be the most well written, factually supported case of dunking on one’s opposition I’ve come across in years. Maybe ever. In the space of ~5 paragraphs you managed to explain the issue and invalidate the entire slate of contradictory arguments with apparent ease….what a complete rhetorical posterizing. Will be interesting to see what pretext smith and the anti Trump camp et al decide to go with when they try to invalidate the facts as they stand here.

[Riva]

That hack Jack Smith does not have constitutional authority to represent the United States in any capacity you monumental idiot. And aren’t you the same clod who argued, vehemently, that there were no separation of powers issues in this case because the executive branching was prosecuting the case? Not even that hack slob Smith argues that imbecility.

[David Nieporent]

That hack Jack Smith does not have constitutional authority to represent the United States in any capacity you monumental idiot

If you have facts on the side, pound on the facts. If you have law on your side, pound on the law. If you have neither on your inside, spew insults.

Whether Smith has authority to represent the United States — a claim you are merely parroting someone else's recitation of, because you don't know anything about these topics — has nothing to do with standing.

[Riva]

If I knew nothing about the facts or law, my knowledge of the separations of powers issues in this case would still be light years beyond yours. And, PS, I didn't mention the word "standing," you imbecile, I said he lacked all authority to prosecute this action at any level. Call it what you want. This garbage political prosecution should be dismissed.

[David Nieporent]

And, PS, I didn’t mention the word “standing,” you imbecile,

PS: the topic of the discussion was standing. If you didn't even mention it, it just shows how far off the rails your comment was.

I said he lacked all authority to prosecute this action at any level. Call it what you want. This garbage political prosecution should be dismissed.

I call it you not understanding the facts or law and just parroting some talking points you read. Even if you were right about Smith's lack of authority — and you're not — the remedy would not be dismissal.

[Riva]

Uh it should and can be dismissal schmuck face. And don’t give an F whether you call it standing or not, the ass Smith lacks authority. And would sure like to know more about your special separation of powers theories, that was you wasn’t it?

[ObviouslyNotSpam]

The entire article was based on "standing".

[David Nieporent]

It's not whether I "call it" standing; it's whether it is standing. As I said, I understand why Calabresi framed it that way: because standing is not waivable. If there actually were a lack of standing here, then the case would have to be dismissed.

But it has nothing to do with standing, so even if Smith lacked authority — a claim that has been repeatedly rejected, notwithstanding Reva's confident assertion based on five minutes of study of the issue (and by "study" I mean reading Twitter) — there's not even a colorable basis to argue that dismissal is the remedy. The remedy is to disqualify Smith and proceed with someone who has legal authority representing the government. If nothing else, the longstanding de facto officer doctrine would provide for that.

[Dr. Ed 2]

Is this a way for SCOTUS to throw the whole damn thing out?

If so, watch the riots start....

[Estragon]

Just think— if you had stuck with law school you might have been able to answer this question yourself! Alas…

[great Unknown]

there is no way "It's a Tax" Roberts will allow a trivial detail like this interfere with government authority-by-fiat.

[rivetjoint]

The Robert's court, new found necessity power (to bend over backwards to 'save' these statutory schemes) is truly frustrating. Apparently, everything is a political question to Robert's, and he will do everything he can to 'save' these schemes. See the Gorsuch dissent in Oil States.

[Sarcastr0]

Riots? Don't you mean FBI/CIA false flags that entrapped some well-meaning and peaceful patriots?

You want to see the right get what the left got with McCarthyism, that's what'd happen if the right somehow manages to get it's shit together enough to riot.

I'm pretty optimistic that their paranoia will overcome the violent frustration they've been told to have.

[Sam Bankman-Fried]

Stop the ste

The last words of Ashtray Babbitt that will inspire a new generation of patriots! Gee, I wonder what she meant by “ste”??

[Mr. Bumble]

"The last words of Ashtray Babbitt [before she was murdered by an agent of the state]..."

[Magister]

I still don't understand why Jack Smith is not an "attorney specially appointed by the Attorney General under law". Where would be the independence of a special counsel who is already an officer of the Department of Justice?

[Kazinski]

Well under Calabresi's argument there is no law that allows the AG to appoint an Attorney without confirmation by Congress.

As for how independent the counsel would be, I think someone appointed with no checks and balances by one person wouldn't be as independent as someone vetted by Congress. But in any case I don't think independence is a big of a consideration when they are investigating someone outside the administration.

[Magister]

The small portion I quoted is from a law, and describes "any attorney specially appointed by the Attorney General", distinct from the Attorney General and the other officers of the Department of Justice; there must be some way of appointing such attorneys, and that law appears to authorize such appointments. Officers approved by the Senate would be appointed by the President and presumably less independent (those appointed previously would be weeded out if not loyal, wouldn't they? Or would not be as independent if loyal to the previous President?).

[Noscitur a sociis]

As I understand it, the conceit is that that statute recognizes what such attorneys can do, but doesn’t create in and of itself authorization to appoint them.

Admittedly, that wouldn’t create a standing issue even if right, but at least Prof. Calabresi is making something akin to a legal argument!

[rivetjoint]

Well, for starters, it is not a law. The special counsel statute was allowed to expire. It is a regulation created by DOJ for DOJ.

[David Nieporent]

No, the independent counsel statute was allowed to expire. Nobody contends Smith was an independent counsel.

[not guilty]

Suppose, for purposes of this discussion, that the Attorney General's appointment of Jack Smith as Special Counsel fails to comport with applicable federal statutes. How is that germane to the instant proceeding before SCOTUS?

The question as to which the Court granted certiorari is "Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office." The indictment was found by a properly constituted grand jury. Any alleged invalidity of the appointment of the Special Counsel has not been litigated in the trial court, https://www.courtlistener.com/docket/67656604/united-states-v-trump/ nor in the Court of Appeals. https://www.courtlistener.com/docket/67891889/united-states-v-donald-trump/ The circumstances of the appointment of Special Counsel have no bearing whatsoever on whether the Court of Appeals decided the merits of the case correctly or incorrectly.

[Kleppe]

This was answered in the third paragraph of the rather short post.

[ReaderY]

I don’t think the question of whether Jack Smith was appointed ultra vires is properly a standing question.

[not guilty]

“This was answered in the third paragraph of the rather short post.”

Think so? I disagree. That paragraph states:

The absence of standing to defend the D.C. Circuit’s opinion below on Smith’s part cannot be waived by Donald Trump’s or anyone else’s failure to raise it sooner. And, the absence of defendant standing must be raised sua sponte by any federal judge or Supreme Court Justice who Jack Smith purports to appear before in any case whether the case involves Donald Trump or anyone else. Standing must exist at all stages of litigation including throughout all authorized appeals and habeas corpus petitions.

Ipse dixit assertions which cite no authorities whatsoever. That doesn't feed the bulldog.

A federal court must consider sua sponte whether a party litigant who invokes the jurisdiction of the federal courts has standing sufficient to satisfy the “case or controversy” requirement of Article III. The party litigants in this case are the United States and Donald Trump. Jack Smith is not a party here. The standing of the United States to prosecute federal crimes has never been, and cannot be, questioned.

The jurisdiction of the federal courts was invoked, not by counsel, but by the finding of a grand jury indictment. An indictment returned by a legally constituted grand jury, if valid on its face, is enough to call for trial of the charge on the merits. Costello v. United States, 350 U.S. 359, 363 (1956).

[ReaderY]

The United States always has standing in criminal prosecutions. Assuming for purposes of argument Jack Smith cannot lawfully represent the United States, then this would be an ultra vires or quo warranto issue, not a standing issue. The entire prosecution and all rulings made under it would be void, and someone else would need to prosecute. And it would mean the lower courts would need to decide the issue again, undoubtedly the same way.

I think there have been enough special prosecutor convictions upheld against enough challenges that this argument is not likely to fly.

[Kazinski]

Its not just any special prosecutor conviction, because the Weiss appointment doesn't have the same flaw, I'm not sure the Mueller prosecutions did, I seem to remember most if not all were referred to US Attorneys for prosecutions as Cohen's was.

[Kleppe]

"The Weiss appointment doesn't have the same flaw"

Correct. That appointment has wholly different flaws. For instance, how can he be a special counsel and investigate his own former case? He's quite literally the last person who should have been appointed a special counsel in that matter.

[Malika the Maiz]

I think Smith's answer can be found here.

https://lawandcrime.com/high-profile/special-counsel-responds-to-meritless-pro-trump-arguments-from-former-reagan-ag-and-federalist-society-co-founder-in-mar-a-lago-documents-case/

[Sharper]

Just read his response and he completely ignores the fact that the cases he cites are about inferior officers authorized to be appointed by statutory law, while claiming he is one as well, but authorized by a regulation created by the Attorney General.

But when Congress hasn't passed a law granting the Attorney General the power to appoint inferior officers, how can he create that power for himself just by putting forth his own regulation?

He can't, any more than anyone else can.

[NvEric]

Jack Smith, if not legally appointed does not the authority to represent the government’s interest, thus lacks standing to engage in the matter before the court, since he does not have a stake in the matter as being just someone brought in without proper justification in representing the defense. This is, after all, Trump v. USA, so Jack Smith is acting as the defendant. Defendants do require standing, which in most cases is obvious, but in this case, Jack Smith can not walk off the street and defend the USA without being properly entrusted, by way of a legal appointment, to have the required standing.

While it seems pedantic to some, it's not, because all of Trump's cases are pedantic, so pedantic must be replied in kind. Splitting hairs works both ways, and "you ain't see nothing yet." There will be more counter-pedanticism before the election and then some.

[ReaderY]

The fundamental flaw with this argument is that this case is not Trump v. Smith. This case is Trump v. United States. The United States always has standing to enforce its laws.

Whether Jack Smith has authority to represent the United States is simply not a standing question. It’s a question the Supreme Court can choose whether or not to decide, like other merits questions, which often involve whether a statute, action, or individual was authorized.

[DaveM]

But the AG can’t just pick anyone he wants to, so the issue is certainly standing “adjacent”, no? Who is this person to even bring the matter before the court? Could I represent the US if the AG says so? Could you?

[ReaderY]

No. Trump claims the Attorney General can’t pick anyone he wants to. The United States claims otherwise. Until that claim is properly litigated, the attorney making an appearance for the United States is presumed to represent the United States, same as any other attorney and any other client.

Cases don’t begin by judges making inquiries whether the attornies before them actually represent their clients. It’s presumed until proven otherwise. This is no different.

[David Nieporent]

Could I represent the US if the AG says so? Could you?

Sure.

But the more salient question is: what is the remedy if the AG incorrectly says so? It’s not dismissal of the case. It would be to disqualify me or you, and then to have someone properly appointed continue with the case.

[David Nieporent]

There are so many ways in which that's wrong that I lost count, but here's a few:

1) Jack Smith does not lack standing, because standing is property of a party, not an attorney.
2) Attorneys never have a stake in the matter.
3) Neither Jack Smith nor the U.S. is "acting as the defendant." The U.S. is acting as the respondent; Smith is acting as a lawyer for the respondent.
4) Saying that defendants "require standing" is mostly wrong anyway. (A defendant can lack standing to seek specific relief, but not for a case as a whole.)

[Rev. Arthur L. Kirkland]

" This is, after all, Trump v. USA, so Jack Smith is acting as the defendant. "

That is the level of legal insight for which a white, male, "often libertarian" (self-described), right-wing blog with a diminishing legal veneer has become known.

[Mark Regan]

Prof. Gary Lawson, one of Prof. Calabresi's co-authors, is also the co-author of an extremely entertaining book on the Territories, where he and Prof. Seidman basically make U.S. history up.

"Extremely entertaining," at least, for those of us who are from Alaska or Hawaii, which attained Statehood at the end of the '50s. It's like Howard Zinn's history, except slightly weirder.

[ThomasReeves]

Garland did this on purpose, right? This lawfare has two purposes - inhibit Trump’s ability to run for president and to ultimately fail because the SCOTUS is forced to intervene on Trump’s behalf. The SCOTUS intervention will the predicate for Biden calling for stacking the Court. If Trump is actually convicted and sentenced to prison, the retaliation against democrats will be extreme. But if he’s saved from conviction by the SCOTUS, the Dems can blame the Court while avoiding retribution. It’s quite brilliant.

[ObviouslyNotSpam]

And clearly, the only logical explanation of these facts!

[GiveMeLiberty]

The quotes legal citation does not establish that only a US Attorney may be a Special Counsel, in fact it implies the opposite. It gives authority to “The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law”. This implies that “any attorney specially appointed by the Attorney General under law” would _not_ be either the Attorney General or any other officer of the Department of Justice. But US Attorneys are senate-confirmed officers of the Department of Justice, so the clause would be redundant if it referred to them. Now what this quote doesn’t specify is how exactly “any attorney” would be “specially appointed by the Attorney General under law”. If there is no law enabling this, then perhaps the clause is inoperative. On the other hand, this section itself could be read as granting the Attorney General such authority.

> "The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States Attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought."

[JHR]

This borders on nonsensical.

Of course Jack Smith doesn't have "standing." He's an advocate, not a party. He represents the sovereign, which doesn't need standing to enforce criminal laws. If Smith was unconstitutionally appointed, that wouldn't affect standing and it wouldn't be a non-waivable defect. He'd be at worst a de facto officer.

In any event, the term "special counsel" in this case is really just an honorific. Jack Smith is interchangeable with any line attorney at DOJ. He's under the authority of the AG.

[MoreCurious]

Every week or two, without fail, Calabresi posts something for no apparent reason other than to amuse us. Keep up the good work, Calabesi. It's becoming too easy to mock and laugh at Trump and his legal team, and it's refreshing to have a new focus.

[loki13]

Wow. Missed this the first time around. Someone really needs to secure Calabresi's account.

Anyway, DMN got it in one above. This isn't a STANDING issue. For the love of all that is holy, this is a legal blog.

Do better.