by Steven Calabresi
The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump’s trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.
Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump’s motion to dismiss Special Counsel Jack Smith’s indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.
The Appointment Clause of Article II, Section 2 provides that: “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.” Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.
We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney’s Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.
Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith’s appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers
The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate. This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years. It is, to say the least, implausible that Congress would require Senate confirmation of the U.S. Attorney for Wyoming but not of a Special Counsel who is prosecuting a former and possibly future President in both Florida and Washington, D.C.
Senators have deliberately decided not to give Attorneys General the power to appoint inferior officers with power to initiate a prosecution because they want to have a say in the confirmation process over who can prosecute cases in their home states. If the Attorney General has the power to appoint prosecutors without Senate confirmation think of what he might do with that power in corrupt places like Cook Country, Illinois or New Orleans, Louisiana. No wonder the Senate grants to the Heads of four other Cabinet Departments the power to appoint inferior officers while denying that power to the Attorney General.
smith should be removed as special counsel and both cases dismissed.
This has been dangling out there for some time. For me, the most intriguing detail is Clarence Thomas’ questioning the legitimacy of Jack Smith’s appointment to be SCO.
This seems one more part of the grounds for dismissal
Yeah, much discussion on the net regarding this appointment. Constitutional scholars are in agreement with respect to the Senate confirmation process as a requirement for appointment. In my view, Judge Cannon has this as perhaps a “Trump” card. I do not know if she is capable of rendering a decision to nullify the appointment or not. Likely not. It seems that her decision would most likely be dismissal given the numerous violations of law by smith with evidence, etc.
But, she can and has impacted the case moving forward. Look for the evidentiary hearings at the end of next month to expose the collaboration between the WH, DOJ and NARA. It may well expose the bragg and DC J6 collusion as well. Will require much popcorn…
Herr Obergruppenfuhrer Garland, Jerk Smear and the corrupt DoJ can’t be to blame; they don’t think any of their political targets they attack with fascist lawfare have any rights.