The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New Eleventh Circuit Amicus Brief In Special Counsel Appeal
"The District Court correctly dismissed the indictment. Amici advance four rationales to support the judgment below."
Today our team submitted an amicus brief in United States v. Trump before the Eleventh Circuit. This case is an appeal from Judge Cannon's decision declaring the appointment of the Special Counsel to be unlawful. Our brief was filed on behalf of Robert Ray, Professor Seth Barrett Tillman, and the Landmark Legal Foundation. We are grateful to Michael A. Sasso for serving as local counsel.
Tillman and Landmark joined our District Court brief. We are honored that Ray joined our effort on appeal. Ray served as one of the last Independent Counsels, replacing Kenneth W. Starr in October 1999, and was in charge of the Whitewater and Monica Lewinsky investigations. He concluded the investigations by March 2002 with the decision not to prosecute President Clinton once he left office.
Our brief makes four primary arguments:
The District Court correctly dismissed the indictment. Amici advance four rationales to support the judgment below.
First, from the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation. Josh Blackman, A Historical Record of Special Counsels Before Watergate (2024), https://papers.ssrn.com/abstract=4970972 (hereinafter"A Historical Record"). And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had "unique authority and tenure." 418 U.S. 683, 694 (1974). Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today's context under today's statutory and regulatory framework.
Second, Special Counsel Jack Smith ("Smith") cannot rely on the permanent indefinite appropriation found in a "note" to 28 U.S.C. §591. In 2004, the Government Accountability Office determined that this appropriation can be used for "investigat[ing] and prosecut[ing] high ranking government officials." GAO, Special Counsel and Permanent Indefinite Appropriation, B-302582, 2004 WL 2213560, at *4 (Comp. Gen. Sept. 30, 2004). But Trump was not a "high ranking" official when he was indicted, and all the alleged conduct took place after he was out of office. In these circumstances, the funding mechanism in Section 591's note cannot be used to pay Smith.
Third, Supreme Court precedent distinguishes between officers and employees. An "Officer of the United States" position must have a duration that is continuous. Though Smith's prosecution has already continued for several years, and his duties are regular, his position is not continuous, because his extant position would not continue to a successor. Morrison v. Olson, 487 U.S. 654, 672 (1988). At most, Smith is a mere "employee" who cannot exercise the sweeping powers of a Senate-confirmed U.S. Attorney.
Finally, Amici have properly preserved for review by the Supreme Court the question of whether Morrison v. Olson should be overruled.
The Special Counsel, like the Independent Counsel, still comes as a wolf. Id. at 699 (Scalia, J., dissenting).
We look forward to this litigation proceeding.
