Because Jack Smith was not an officer of the United States at the time of his appointment, the argument is that his appointment was unconstitutional.
On December 21, 2023, a very interesting amicus brief was filed with the United States Supreme Court in the matter of United States v. Trump. The brief was filed in response to Special Counsel Jack Smith’s effort to convince the Court to take up the immunity issue raised by former President Trump rather than have it decided first in the D.C. Circuit Court of Appeals. The brief was filed by former U.S. Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson from Northwestern and Boston University Law Schools, respectively.
The brief seems like a long shot to me on political nature, but it makes sense on the merits. However, if the argument is correct, then the entire concept of our special counsels faces a constitutional quandary as the office exists today.
The simple layman legal reasoning here is that the Justice Department is limited to assigning cases to those attorneys who are currently officers of the United States. This seems somewhat obvious. You do not see any public office asking an attorney in private practice to run a prosecution. But this is not just by choice, rather doing so would seem to be unconstitutional.
The one exception to this allows for an Attorney General to appoint someone outside of existing officers if there is a specific law that calls for it.
The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings … which United States attorneys are authorized by law to conduct…
One such example would be that the original statute passed by Congress regarding Special Counsels who are very specifically supposed to be someone outside of the U.S. Government. This legal statute allowed the Attorney General to appoint a private attorney to avoid the conflict of interest that might come from appointing someone already an officer of the U.S.
But that statute was time limited, and the statute ran out without Congress reestablishing it. The Special Counsel we currently are using was established as a "regulation" created by the Department of Justice to fill the void after the statute ran out. Therefore, there is no existing "law" that establishes the concept of someone outside the U.S. Government being allowed to conduct legal proceedings for the Government. The Attorney General in this case is using the "regulation" as if it was the "law". In fact, I believe that they may still reference the original law in some of the filings establishing Jack Smith as a Special Counsel even though the law expired.
The argument provided in the amicus brief is that there is a constitutional and legal difference between a regulation and a law, and that Jack Smith does not have the constitutional or legal authority to do the bidding of Merrick Garland in this situation.
Oddly, the regulation also provides that the Special Counsel should be someone outside the Government, which seemingly create problems for other special counsels such as John Durham or David Weiss who were officers of the United States at the time of their appointment. We saw people object to these special counsels for that very reason.
It certainly feels like whoever put this regulation in place did not really think it through very well. That being said, it doesn't appear that our Justice Department takes any of this nuanced language very seriously in either direction. They seem to believe that they can appoint whoever they would like and maybe they are right in lieu of how things work in DC these days.
Now this is where the idea of the law becomes a bit murky to me. I think that the argument is technically valid. The regulation is not really a law, but it being treated as if it was a law. That is obvious and hard to argue away. But is that difference legally significant? Or perhaps a better way to ask is if that difference is legally significant "enough" to actually make a ruling that somehow removes Jack Smith from his position? Sometimes you feel like the law only matters to the degree that politics allows for it to matter. This is probably one of those times.
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