National Constitution Center Podcast on United States v. Trump (Florida Edition)

Can the Attorney General Appoint a Special Counsel?

Today I recorded the We the People Podcast with Jeff Rosen and Matt Seligman. We discussed one of several cases called United States v. Trump. No, not the immunity case. Instead, we talked about the appointment of Jack Smith as special counsel. I though this was a wide-ranging and informative conversation. Also, Seligman and I both presented arguments before Judge Cannon in March.

You can listen here.

Comments

[Vsound]

I notice 28 USC 533 (mentioned in the podcast) says "may appoint officials", not "may appoint officers". Is there any legal precedence describing a difference between an official and an officer?

[Riva]

As Judge Cannon notes, the terms are not synonymous, nor can they be superficially substituted. While all officers may be officials, not all officials are officers.

[Doug Heffernan]

I wondered the same thing. Also wondered if an officer must be associated with an office. Not sure if these are real arguments about definitions/meaning, or if all of this is just picayune nonsense to support motivated reasoning.

[Riva]

No, this isn’t “picayune” nonsense. It’s statutory interpretation to preseve constitutional boundaries in a statutorty scheme that does not accord the AG the power to appoint independent counsel officers like Smith.

[Turd Ferguson]

It is nonsense because, as explained in the SC's brief, there are several laws that grant his appointment and SCOTUS precedent isn't dicta. It is clearly going to be overturned in the 11th and the case will very likely be reassigned.

[David Nieporent]

Is there any legal precedence describing a difference between an official and an officer?

Yes. As even Judge Cannon noted before proceeding to ignore it, all officers are officials, but not all officials are officers.