Special Counsels, Independent Counsels, Principal Officers, Inferior Officers, Employees -- Lions and Tigers And Bears -- Oh My!!!!

Did Attorney General Garland Violate the Constitution by Appointing Jack Smith as a "Special Counsel"?

Yesterday the Judge in the Florida documents case held a hearing on the motion to dismiss filed by the Trump defense on the basis that Speçial Counsel Jack Smith is not lawfully occupying the office to which Attorney General Merrick Garland appointed him into.

This is a convoluted legal problem that — for lack of a better description — pits an accepted modern practice based on necessity against the formulations of Executive Power established by the Founders and only obliquely spelled out in various documents that date back to the drafting of the Constitution.

The modern practice is to appoint a “special prosecutor” whenever a matter arises that requires a criminal investigation but the subject matter is such that the DOJ is going to be seen as “biased” primarily due to political considerations.

The historical problem is that the framers of the Constitution wanted the exercise of executive power to be accountable, and that the limits of executive power be subject to the kinds of “checks and balances” reflected by the requirement that some Executive Branch offices be subjected to Senate confirmation.

On February 22, 2024, the Trump legal defense made a Motion to Dismiss the Indictment on the grounds that Jack Smith, a private citizen when chosen, is not able to hold the “Office” of “Special Counsel” given that he was not appointed by the President and confirmed by the Senate, which are requirements for any individual who occupies an “Office of the United States.”

This motion tracks an Amicus brief filed by former Attorney General Edwin Meese in the Court of Appeals for the District of Columbia when FPOTUS Trump’s motion to dismiss based on immunity was pending before that Court. But Trump’s defense had not raised the issue in the District Court. Because of that, it was not something that the Trump defense could raise for the first time in the appeals court. When the immunity issue was heard by the Supreme Court, Justice Thomas asked the attorney representing FPOTUS Trump if they were making this claim and the response was “No” - not in the D.C. case. But the motion had been filed in the Florida case at the time of the April oral argument before the Supreme Court.