Introduction
Two things are certain in Trump’s Mar-a-Lago stolen documents case. One, the evidence that Trump is a thief is overwhelming. Two, knowing that a trial will find Trump guilty, his supporters are desperately filing amicus curiae briefs trying to convince Judge Aileen Cannon there is a procedural fault that sinks the case.
The Amicus Curiae Briefs
Trump’s malevolent PR flack Stephen Miller and his law group, America First Legal Foundation, argued that the National Archives and Records Administration (NARA) had no authority to report a crime to the Department of Justice. An absurd conclusion Smith has already run through a legal wood-chipper
Edwin Meese, Ronald Reagan’s Iran-Contra Attorney General, has filed a brief arguing that President Biden’s AG, Merrick Garland, did not have the legal authority to hire a Special Counsel to investigate Trump’s illegal retention of the American people’s property. Meese bases his claim on the Constitution’s appointments clause (Article 2, Section2 Clause 2)
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to … appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
(Bolding mine)
The dispute is whether Special Counsel Jack Smith is an Officer or an inferior Officer. If the former, he would have to have been nominated by Biden and approved by the Senate — which he was not. If the latter, there is no issue.
Smith’s Rebuttal to Meese
Smith has filed a brief explaining why Meese’s gang is not shooting straight. Let us have a look at it. The Special Prosecutor starts with a summary. (I have removed the case references and legal identifiers as this piece is for non-lawyers. For Smith’s full brief, click HERE)
Former Attorney General Edwin Meese III and others filed an amicus brief (“Meese Amicus”) in support of defendant Donald J. Trump’s claim that the Special Counsel lacks the legal authority to prosecute this case.
Next, Smith gets to the meat of the matter. Referring to the "Meese Amicus" he writes:
First, it claims that the challenge to the Special Counsel’s authority has a “quasi-jurisdictional character” that requires this Court to resolve that dismissal claim before any others. Second, the Meese Amicus argues that under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, the Special Counsel is a principal officer who should have been (but was not) nominated by the President and confirmed by the Senate.
In short, Smith argues that Meese is trying to delay the case by insisting Judge Cannon should consider Smith's legitimacy while putting everything else on hold. And that Meese is claiming Smith is in a position too important to escape legislative review. Smith then explains why Meese is wrong on both counts.
I. The Court Is Not Required to Decide Trump’s Challenge to the Special Counsel’s Authority Before Deciding the Other Dismissal Claims
Smith starts by agreeing with Meese’s call for haste — as does every American interested in justice and getting Trump to a guilty verdict ASAP.
The Meese Amicus contends that the Court should decide Trump’s challenge to the Special Counsel’s authority before “resolving any other grounds for dismissal.” It also urges the Court to act “with dispatch” and “with the expectation of an expedited appeal.” There are indeed good reasons to resolve Trump’s meritless challenge to the Special Counsel’s authority—as well as his other pretrial dismissal claims—expeditiously.
But then Smith dismisses the one case Meese offers to support his hifalutin legal theories as irrelevant.
The Meese Amicus’s suggestion that the claim bears some “quasi-jurisdictional character” that places it above “standard defenses” finds no support in Freytag v. Comm’r, the sole case on which the Meese Amicus relies.
Smith then dissects the Freytag case to show why it has no bearing on the matter. And he slams the door on Meese’s nonsense.
Nothing in Freytag supports leap frogging this motion ahead of Trump’s other dismissal motions. Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them—including authoritative decisions by the Supreme Court.
However, Smith is not above judge-stroking. His relationship with Trump’s pet bench warmer, Aileen Cannon, has been jagged. But he uses a little butter and a pat on the head.
Accordingly, the Court can and should exercise its discretion to resolve all of Trump’s dismissal motions in the order that the Court finds most efficient—as the Court has already begun to do.
Complimenting someone for doing their job in a way that benefits you is the best way to get that person to keep benefitting you.
Next, Smith turns to the nature of his own position.
II. The Special Counsel Is an Inferior Officer Under the Appointments Clause
Smith starts by saying that Meese has made him more important than he is.
The Meese Amicus argues that the Special Counsel’s appointment was unconstitutional on the theory that he is a principal officer and therefore must be appointed by the President with the advice and consent of the Senate, which he was not. That argument fails.
Smith goes on to explain that he is not a fancy-pants free agent. Au contraire, he, like so many other legal grunts, has a boss who can tell him what to do.
Under governing authority, the Special Counsel is an “inferior Officer” who may be appointed by the head of a department because he is subject to supervision and oversight by the Attorney General. That conclusion is confirmed by cases addressing prosecutors vested with authority comparable to the Special Counsel.
He goes on to enumerate why he is merely a cog.
A. An inferior officer is one who reports to and is supervised by a superior officer
Here, Smith references the SCOTUS test for deciding his status.
Supreme Court authority establishes that the governing test for identifying an “inferior Officer” asks whether the official is subject to supervision and oversight by other officers appointed by the President with Senate consent.
He then trots out three cases in which SCOTUS has established the governing test. He finishes this section by pointing out that Trump’s own Attorney General was authorized to appoint a Special Counsel. And what works for one works for all.
In re Grand Jury Investigation, the D.C. Circuit applied these decisions to conclude that Special Counsel Robert Mueller, who was appointed by the Acting Attorney General under the same statutory and regulatory framework employed here, was an inferior officer. The same conclusion is warranted in this case.
Lastly, he connects the dots.
B. The Special Counsel reports to and is supervised by the Attorney General and is therefore an inferior officer
Here, Smith adds specificity.
The Special Counsel is an “inferior Officer” under the Special Counsel regulation because the Attorney General supervises the Special Counsel’s work, may remove him from office, and may review and countermand his decisions. And, as an additional means of exercising control, the Attorney General can rescind the regulation at any time, or amend the appointment order, and exercise direct statutory supervision over the Special Counsel.
For most people, this would be enough. But lawyers are apparently paid by the word. So Smith then fleshes out his argument.
1. The Special Counsel is subject to supervision and oversight
In this section, Smith piles on the case law proving that the Special Counsel has a boss before getting to the proof that the Special Counsel is an “inferior officer.”
2. The Special Counsel is removable by the Attorney General
Smith enumerates the ways he serves at the pleasure of the AG.
The Attorney General’s broad power to remove the Special Counsel under the regulation also supports the conclusion that he is an inferior officer. The Special Counsel is removable for “misconduct, dereliction of duty . . . or for other good cause, including violation of Departmental policies.”
The Special Counsel may also be removed by the Attorney General’s decision to terminate the investigation at the end of a fiscal year, which would automatically close the Special Counsel’s office.
The Attorney General’s power to end an investigation through removal of the Special Counsel serves as a strong mechanism for control
Smith then offers another reason why he is inferior.
3. The Special Counsel’s decision making authority is subject to review and correction
Smith points out that while Special Counsels have more leeway than regular prosecutors, they do not have executive authority. (Bill Barr swatting Robert Mueller away is a good case in point.)
The Special Counsel is also not a principal officer under the regulation because he does not have unlimited authority to make final decisions on behalf of the United States. The scope of Attorney General review of Special Counsel decision making is “narrower” than plenary review, but “this limitation upon review does not . . . render the Special Counsel a principal officer.”
“What is significant is that the Special Counsel has no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers.”
And if that is not enough, Smith adds that the AG can change his conditions of employment
4. The Attorney General retains authority to revoke the Special Counsel regulation or amend the order of appointment
Although the Special Counsel regulation has the force of law while in effect, it may also be revoked in the Attorney General’s sole discretion.
Smith then enumerates the legal authorities that support his contention.
Lastly, Smith returns to the salient issue.
III. Conclusion
For foregoing reasons and those stated in the Government’s opposition, the Court should deny Trump’s motion to dismiss the Superseding Indictment on the ground that the Special Counsel lacks authority to prosecute this case.
An amicus brief is merely one party's offer of information to the judge. In itself, it requires no action. The decision Cannon has to make is whether to dismiss Trump’s motion. Smith is merely pointing out that Meese’s legal reasoning does not support Trump’s plea to Cannon to make his document theft problems disappear.
Ironically, if Cannon does dismiss the case, Smith will go directly to the 11th Circuit. If they were to reinstate the case, it would almost certainly end up with a different Judge. Trump and Meese should be careful what they ask for.
Note: I suspect many readers are surprised that Meese is still alive. Unfortunately, despite his association with the criminality of Iran-Contra and his resignation after an independent counsel linked him to the Wedtech scandal, Meese (92) is still around — and still trying to corrupt the system.