The Volokh Conspiracy

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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.