Steven Calabresi, Edwin Meese and Gary Lawson have filed this amicus brief in U.S. v. Trump (the presidential immunity case). From the introduction:
This Court should reject Mr. Smith’s request for certiorari before judgment for the simple reason that he lacks authority to ask for it. Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.
The illegality addressed in this brief started on November 18, 2022, when Attorney General Merrick Garland exceeded his statutory and constitutional authority by purporting to appoint Smith to serve as Special Counsel for the Department of Justice (DOJ). Smith was appointed “to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” See Off. of the Att’y Gen., “Appointment of John L. Smith as Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).
Attorney General Garland cited as statutory authority for this appointment 28 U.S.C. 509, 510, 515, and 533. But none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel. First, the Appointments Clause requires that all federal offices “not otherwise provided for” in the Constitution must be “established by Law,” U.S. Const. art. II, §2, cl. 2, and there is no statute establishing the Office of Special Counsel in DOJ. The statutory provisions relied upon by DOJ and lower courts for the appointment of special counsels over the past half century do not authorize the creation and appointment of special counsels at the level of United States Attorneys. And United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was ever raised in that case about the validity of the independent counsel’s appointment. That case concerned the relationship between the President and DOJ as an institution, not between the President and any specific actor purportedly appointed by DOJ.
Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute, see U.S. Const. art. II, §2, cl. 2, and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.
Third, the Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official other than the President is an “inferior” officer. Such a reading of those decisions leads to the ludicrous result that there is only one noninferior officer in every executive department.
To be sure, there are times when the appointment of a Special Counsel is appropriate. And statutes and the Constitution both provide ample means for such appointments by allowing the use of existing United States Attorneys. Any number of United States Attorneys have performed with distinction the function of serving as a Special Counsel. For example, on December 30, 2003, Patrick Fitzgerald, who was then the U.S. Attorney for the Northern District of Illinois, was lawfully appointed by the then-acting Attorney General to investigate the Valerie Plame leak affair, which arose within the jurisdiction of the District of Columbia District Court. Mr. Fitzgerald, who was a Senate-confirmed officer of the United States, prosecuted and secured the conviction of Vice President Richard Cheney’s Chief of Staff, Scooter Libby, in the U.S. District Court for the District of Columbia. Other recent examples involve the Senate-confirmed U.S. Attorneys Rod Rosenstein, John Huber, and John Durham. All of these investigations and prosecutions of high-level wrongdoing were lawful.
What federal statutes and the Constitution do not allow, however, is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title “Special Counsel.” That is what happened on November 18, 2022. That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current attempt to obtain a ruling from this Court.
Seems right to me, although it mostly turns on the question of statutory authorization, on which I don't have an informed opinion.
(Via Volokh Conspiracy.)
Posted at 6:09 AM