A Different Approach
-
-
More on Smith and standing:
The author, Calabrisi, is the guy cited in the Breitbart column.
-
Smith responds:
Last month, we filed an amicus brief in United States v. Trump (S.D. Fla.), one of two prosecutions brought against former-President Trump by Special Counsel Jack Smith. Our brief argued that Special Counsel Jack Smith is not an "Officer of the United States." At most, his temporary position is characterized as a mere "employee." As a result, this mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.
Smith filed a response to our amicus brief. Smith argued that the Blackman-Tillman brief is in conflict with an amicus brief filed by Former Attorney General Edwin Meese III, Professors Steve Carabresi and Gary Lawson, and organizations. Smith wrote:
Professor Seth Barrett Tillman and others filed (ECF No. 410-2) an amicus brief ("Tillman Amicus") in support of defendant Donald J. Trump's claim (ECF No. 326 at 1-7) that the Special Counsel lacks the legal authority to prosecute this case. Taking the polar opposite view from Former Attorney General Edwin Meese III and others, who argued in a separate amicus brief ("Meese Amicus") that the Special Counsel is a principal officer under the Constitution, see ECF No. 364-1 at 14-16, the Tillman Amicus's central contention is that the Special Counsel is not an officer at all, but instead an employee who is forbidden from exercising the authority vested in the Special Counsel by law.
A similar claim was made in an amicus brief filed by a group of constitutional lawyers and "state democracy defenders." This cohort includes Professor Laurence Tribe, George Conway, Patrick Fitzgerald, Donald Ayer, and Christine Todd Whitman. The amicus argues that the Blackman-Tillman brief is "inconsistent" with the Meese brief.
Smith, and the amicus brief, are incorrect. The Blackman-Tillman and Meese briefs are in substantial agreement with one another.
The Meese brief argues that for the Special Counsel to exercise the powers he is exercising, the Special Counsel must be a principal officer. However, the Special Counsel is in actuality something else. The Meese brief argues that the Special Counsel is merely an inferior officer. And, the Meese brief contends, that inferior officer cannot hold the powers granted to the Special Counsel.
The Blackman-Tillman brief approaches the same issue from a different perspective. We contend that for the Special Counsel to exercise the powers he is exercising, he must be an officer. And to be an officer, a position must have continuity. However, the Special Counsel is in actuality something else. We argue that the Special Counsel is merely an employee, because his position is not continuous.
The Meese brief, and the Blackman-Tillman brief, agree that Special Counsel Jack Smith is purporting to exercise powers he cannot exercise. Indeed, the Meese brief expressly argues that "The authority exercised by [Smith] as a so-called 'Special Counsel' far exceeds the power exercisable by a mere employee." The Meese brief added, "that Smith "is acting as an officer, but aside from specific offices listed in the statutes discussed above, there is no office for him to hold."
The Meese brief argues that, at best, the Special Counsel is an inferior officer. As such, the Special Counsel cannot exercise the powers he purports to exercise. The Blackman-Tillman brief makes an almost identical point. Our position is, at best, the Special Counsel is an employee. If that characterization is correct, and we think it is, then the special counsel certainly cannot exercise the powers he purports to exercise.
-
Justice Thomas asks about whether Smith is legitimate:
"Did you, in this litigation, challenge the appointment of special counsel?" Thomas asked Trump attorney John Sauer on Thursday during a nearly three-hour session at the Supreme Court.
Sauer replied that Trump's attorneys had not raised that concern "directly" in the current Supreme Court case — in which justices are considering Trump's arguments that presidential immunity precludes the prosecution of charges that the former president illegally sought to overturn the 2020 election.
Sauer told Thomas that, "we totally agree with the analysis provided by Attorney General Meese [III] and Attorney General Mukasey."
"It points to a very important issue here because one of [the special counsel's] arguments is, of course, that we should have this presumption of regularity. That runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or confirmed by the Senate at any time. So we agree with that position. We hadn't raised it yet in this case when this case went up on appeal," Sauer said.
In a 42-page amicus brief presented to the high court in March, Meese and Mukasey questioned whether "Jack Smith has lawful authority to undertake the 'criminal prosecution'" of Trump. Mukasey and Meese — both former U.S. attorneys general — said Smith and the Office of Special Counsel itself have no authority to prosecute, in part because he was never confirmed by the Senate to any position.
Federal prosecutions, "can be taken only by persons properly appointed as federal officers to properly created federal offices," Meese and Mukasey argued. "But neither Smith nor the position of special counsel under which he purportedly acts meets those criteria. He wields tremendous power, effectively answerable to no one, by design. And that is a serious problem for the rule of law — whatever one may think of former President Trump or the conduct on January 6, 2021, that Smith challenges in the underlying case."
The crux of the problem, according to Meese, is that Smith was never confirmed by the Senate as a U.S. attorney, and no other statute allows the U.S. attorney general to name merely anyone as special counsel. Smith was acting U.S. attorney for a federal district in Tennessee in 2017, but he was never nominated to the position. He resigned from the private sector after then-President Trump nominated a different prosecutor as U.S. attorney for the middle district of Tennessee.
Meese and Mukasey wrote in their brief that the Nixon case was irrelevant because it "concerned the relationship between the President and DOJ as an institution, not between the President and any specific actor purportedly appointed by DOJ."
The pair also said special counsel investigations are necessary and often lawful, but stated that "the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel.’ Smith’s appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump."
Smith was a private citizen when Attorney General Merrick Garland appointed him as special counsel to investigate Trump in 2022.
U.S. Special Counsel Jack Smith has charged Trump in Florida for allegedly mishandling classified documents and in Washington, D.C., for election interference. (Al Drago/Bloomberg via Getty Images)
Other recent special counsels — including John Durham's Trump-Russia probe; David Weiss of the Hunter Biden investigation; and Robert Hur, who investigated Biden's mishandling of classified documents — were all confirmed by the Senate to various positions before being named as special counsels. -