The Volokh Conspiracy
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New in Harvard JLPP Per Curiam: What We Did and Did Not Argue in United States v. Trump
Seth Barrett TIllman and I write about our experience in Judge Cannon's court, before the decision yesterday.
On June 21, I presented oral argument in Judge Cannon's court on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation. After the argument, Seth and I wrote an essay about our argument. To address some misperceptions, we discussed what we did and did not argue.
In case you are living under a rock, yesterday Judge Cannon granted the motion to dismiss the indictment. The court cited several of our arguments. We will have more to say about the court's decision in due course. But for now, we decided to publish our essay without regard for the court's decision.
Our HJLPP essay may shed some light on the court's decision. Here is the introduction:
On June 21, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida heard oral argument in United States v. Trump. This prosecution was brought by Special Counsel Jack Smith with regard to former President Trump's possession of certain documents at Mar-A-Lago. Blackman presented oral argument that day based on an amicus brief we had filed, with the Landmark Legal Foundation, in March.
Our goal here is to explain the lines of argument we put forward in our amicus brief, our motion, and at the hearing on Friday, June 21, 2024.[1] We will address three questions. First, does United States v. Nixon require the District Court to dismiss the former President's motion to dismiss the indictment? Second, does the Special Counsel hold a continuous "Officer of the United States" position? And third, has Congress appropriated money to pay the Special Counsel and his staff and contractors?
And here is our discussion about United States v. Nixon. Our argument did not turn on whether a passage in that case was holding or dicta:
During oral argument, we made a different argument. We assumed for the sake of argument that the parties in Nixon had raised the issue: that is, whether the special prosecutor's position was lawful. We further assumed that the Court's decision squarely addressed that issue. We even assumed that in addressing that issue, the decision on this point was the Court's holding, and not dicta. Even with all of these assumptions in place, Nixon is not controlling in United States v. Trump. Why? A prior decision is only controlling, as opposed to persuasive, where the facts are the same. And here, the facts are not the same.[4]
We put forward three reasons in support of our position. First, the Nixon Court repeatedly described the circumstances giving rise to the conflict as unique.[5] The Court described the special prosecutor as having "unique authority and tenure.[6] And finally, the Court plainly stated that the case was decided based on "the unique facts of this case."[7] When the Court tells the parties, the legal community, and the country that the facts are "unique" and when it does so multiple times, the implication is that other cases are, in fact, dissimilar and that the holding should not be extended to different facts at a subsequent date. Nixon was the proverbial ticket good for one ride—or perhaps, one president. Bush v. Gore could be characterized in a similar fashion.[8]
Second, the Nixon Court supported its decision by expressly relying on several statutory provisions, and on regulations put into effect in 1973 by Acting Attorney General Robert Bork.[9] Although the former statutory provisions remain in effect, the latter regulations were superseded by the Ethics in Government Act (1978), which created independent counsels. The 1978 act, because it was not re-authorized by Congress, expired in 1999. Subsequently, new regulations were put into effect in 1999 by Attorney General Reno. The Nixon-Court-era regulations for special prosecutors and the modern, now-in-force Reno regulations for special counsels are not the same. For that reason alone, Nixon is not and cannot be controlling: Nixon relied upon federal regulations which are no longer in effect.[10]
Third, the Nixon Court explained why the 1973 Bork regulations were significant. The Court noted:
The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action.[11]
Under the 1973 Bork regulations, the special prosecutor enjoyed unique and a since unmatched level of independence. The special prosecutor was beyond the ordinary removal power of the President, who, in the ordinary course, can remove high ranking Executive Branch officers of the United States at pleasure. Under the Bork regulations, the special prosecutor could not be removed even for "good cause;" rather, he could only be removed for "extraordinary improprieties." Again, this level of independence is well beyond what appears in the Reno regulations.[12] Finally, the 1973 Bork regulations permitted removal of a special prosecutor only after the President had consulted and sought consensus from eight high ranking members of Congress. Not only do modern special counsels enjoy no such protections against removal, any effort in this manner to insulate special counsels against presidential removal would seem to be plainly forbidden by more recent developments in Supreme Court case law.[13] To put it simply, the Nixon decision, to the extent it validated the office of special prosecutor as lawful, did so based on a regulatory framework that is no longer in force and which could not be put into effect today by statute due to Bowsher v. Synar. Nixon was predicated on a unique and an unmatched level of independence vested in special prosecutors. By contrast, today's special counsel, including Jack Smith, enjoy no such independence against removal. Thus, Nixon is not controlling.
In making the argument above, we only conclude that Nixon is not controlling; it does remain persuasive—as do other more recent Supreme Court Appointments Clause decisions.
[4] See United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (William Pryor, J.) (en banc) ("Although Johnson argues that Terry is inconsistent with the original meaning of the Fourth Amendment and that we should apply it narrowly to 'limit[] the damage,' we must apply Supreme Court precedent neither narrowly nor liberally—only faithfully."); Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2000) ("There is, however, a difference between following a precedent and extending a precedent.").
[5] See 418 U.S. at 691 ("unique"), 697 ("uniqueness of the setting").
[6] Id. at 694.
[7] Id. at 697 (emphasis added).
[8] 531 U.S. 98, 109 (2000) ("Our consideration is limited to the present circumstances . . . .").
[9] See Nixon, 481 U.S. at 694–95, 694 n.8 (citing 38 Fed. Reg. 30738–39, as amended by 38 Fed. Reg. 32805).
[10] See Id. at 695 (characterizing the 1973 Bork regulations as having "the force of law"); cf. Allapattah Services, Inc. v. Exxon Corp., 362 F.3d 739, 765 (11th Cir. 2004) (suggesting that a Supreme Court holding is no longer controlling "where specific statutory language that had previously been interpreted by the Court is amended . . . .").
[11] Nixon, 418 U.S. at 694 n.8 (quoting the underlying regulation).
[12] See 28 C.F.R. 600.7(d) (1999) (permitting a special counsel's removal for "good cause").
[13] See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986).
We welcome any feedback or comment. As all can predict, this case is headed to a higher court.
