On November 18, 2022, Attorney General Merrick Garland purported to appoint private citizen Jack L. Smith to be a Special Counsel with the power of one of the 93 U.S. Attorneys but with nationwide jurisdiction. This makes Jack Smith more powerful than any of the 93 U.S. Attorneys even though they have been Senate-confirmed to their particular offices, and Jack Smith has not been Senate confirmed for the particular office, which he now claims to hold. A close examination of the Justice Department's (DOJ's) organic statute makes it clear that, unlike at least four other Heads of Cabinet Departments, the Head of the Justice Department has not "in, the words of the Appointments Clause, been "by Law" *** vested" with the power to appoint inferior officers like Jack Smith who have more power than any of the 93 Senate-confirmed U.S. Attorneys. This is made clear by an examination of the DOJ's organic statute, 28 U.S. C. Sections 509, 510, 515-519, 533, and, most importantly, Section 543. This latter statute, 28 U.S.C. Section 543, explicitly allows the appointment by the Attorney General of a Special Counsel to assist a U.S. Attorney but not to replace him. Comparison of the DOJ's organic statute with the organic statutes of at least four other Cabinet Departments illustrates the kind of clear laws by which Congress exercises its power "to by Law vest the Appointment of such inferior Officers, as they think proper, *** in the Heads of Departments."
Since 1999, when the Independent Counsel provisions of the Ethics in Government Act expired, the Department of Justice ("DOJ") has had in place regulations providing for the appointment of private citizens as Special Counsels who possess "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." Unlike a U.S. Attorney, however, private citizen Jack Smith has not been nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds. This is blatantly unconstitutional and renders Jack Smith powerless to seek a writ of certiorari before judgment from the Supreme Court, as he is trying to do at the moment.
Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, were patently unlawful, for reasons set forth in great detail in: Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment is Unlawful, 95 Notre Dame Law Review 87 (2019). The same argument renders the appointment of private citizen Jack Smith to prosecute Donald Trump right now unconstitutional. Private citizen Jack Smith, under the regulation, has all of the power of a U.S. Attorney, and also nationwide jurisdiction, but he was never nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds, in the way that U.S. Attorneys are nominated and confirmed for their particular offices. This is blatantly unconstitutional. It is imperative that the Supreme Court rule on this question right now. I have co-written and co-signed an amicus brief with former Attorney General Ed Meese and Professor Gary Lawson, which was filed in the Supreme Court today in United States v. Trump, which is a petition for certiorari before judgment filed by private citizen Jack Smith purporting to speak for the government of the United States, and which is currently before the Supreme Court, and which makes the argument that Jack Smith's appointment was unconstitutional. Here is a link to the filed Amicus Brief: https://www.supremecourt.gov/DocketPDF/23/23-624/293864/20231220140217967_US%20v.%20Trump%20amicus%20final.pdf
