Is Jack Smith's Appointment Illegal?

Jack Smith is not “assisting” superiors at the DOJ—he is running a multi-million-dollar prosecution and acting as if he was U.S. Attorney Jack Smith.

This is a guest post by David W. Fischer, a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A.  Most recently, Fischer defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.

Southern Florida has seen its share of hurricanes, but an earthquake may soon hit the Treasure Coast area as a result of Donald Trump’s motion seeking to dismiss his documents indictment based upon Jack Smith’s alleged illegal appointment as Special Counsel.  U.S. District Court Judge Aileen Cannon has set aside two full days (Friday and Monday) to hear arguments addressing whether Smith has the legal authority to prosecute the former president, a clear sign that she perceives Trump’s argument as tenable. 

The Democrat “lawfare” team should be nervous.

The argument that Attorney General Merrick Garland lacked authority to appoint Jack Smith as Special Counsel to prosecute Trump first surfaced in an amicus brief filed by former Attorney General Edwin Meese in Trump’s immunity appeal (now pending before the U.S. Supreme Court).  Meese’s argument emphasizes that Smith has been vested with sweeping powers equivalent to the 93 presidentially appointed (and Senate-confirmed) U.S. Attorneys.  According to Meese, Smith has no constitutional authority to act as an unofficial 94th U.S. Attorney because he is not, unlike U.S. Attorneys, a presidentially appointed “officer of the United States” as that term is used in Article 2, Section 2, Clause 2 of the Constitution. 

No one suggests that Smith--a private citizen who AG Garland plucked out of an international war crimes tribunal at The Hague—can justify his appointment via the Constitution, which makes no mention of a Special Counsel.  In court filings, however, Smith countered Meese’s arguments by relying on federal statutes that authorize AG Garland to retain “special” attorneys to assist in the prosecution of cases.

Smith also relies on a 2019 case out of the anti-Trump D.C. Circuit, which rejected a similar challenge to Russia-hoax Special Prosecutor Robert Mueller’s appointment.   The D.C. Circuit opinion, however, is of dubious value as it glossed over several important arguments Meese and Trump’s legal team are now making and is, of course, not binding on Judge Cannon, who sits in the Eleventh Circuit. 

The D.C. Circuit’s analysis, which Smith latches on to, points to federal statutes that empower the Attorney General to appoint “special” attorneys to prosecute cases which, Smith argues, authorizes his appointment as “Special” Counsel.    Smith correctly notes that the Department of Justice (DOJ) for decades has routinely hired “Special Assistant U.S. Attorneys” or “SAUSAs” to prosecute felony cases.  Smith’s point: If the AG can retain private citizens to investigate and prosecute drug dealers and terrorists, it certainly can do the same with Trump’s documents case.

To understand the fallacy of Smith’s argument, a little background is necessary. 

How We Got Here

Until 1999, the appointment of an “Independent Counsel” to investigate alleged wrongdoing was not particularly controversial, at least as to its legality.  In 1978, Congress enacted the Ethics in Government Act, a post-Watergate statute that authorized the appointment of Independent Counsels.  Armed with congressional authorization, prior AGs sought the appointment of Independent Counsels, e.g., Lawrence Walsh and Ken Starr, from outside the DOJ.

In the aftermath of Iran-Contra and the Monica Lewinsky scandal, however, Republicans and Democrats allowed the Ethics in Government Act to expire.  To fill the void, Attorney General Janet Reno promulgated the infamous “Reno Regulations,” which authorize the Attorney General to appoint a “special counsel” from “outside the Government” to prosecute crimes when certain conflicts of interest arise.  It was the Reno Regulations that allowed for Smith’s hiring as Special Counsel.

While true, as Smith argues, that the DOJ routinely hires “Special” Assistant U.S. Attorneys from the private sector to prosecute a variety of crimes, these outside hires are, according to the Title 28 U.S.C. § 543 (the governing statute), only authorized to “assist” the U.S. Attorney they work under.  Jack Smith, by contrast, is not “assisting” superiors at the DOJ—he is running a multi-million-dollar prosecution, hiring and supervising a team of prosecutors and case agents, and acting as if he was U.S. Attorney Jack Smith.

The Reno Regulations, in fact, make clear that Smith’s Special Counsel designation makes him the equivalent of a full-fledged, presidentially appointed and Senate-confirmed U.S. Attorney: “[T]he Special Counsel shall exercise . . . the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 

Smith, however, was not appointed by any President.  And while Congress has authorized the hiring of “special” lawyers to “assist” line prosecutors in U.S. Attorney Offices to prosecute cases, it never sanctioned the creation of a 94th U.S. Attorney position to be filled by someone who is a private citizen and not an “officer of the United States.”  According to Meese, because neither the Constitution nor Congress authorized private citizen Jack Smith to possess the sweeping powers of an independent counsel, Trump’s indictment must be dismissed.

When I first heard about Meese’s argument, I was highly skeptical.  Having now fully reviewed the legal arguments on both sides, however, it appears that Meese is on to something.  The DOJ has no authority, either under the Constitution or federal law, to commission a new “officer of the United States” in the form of a Special Counsel with powers equivalent to a U.S. Attorney. To do so would be akin to the federal judiciary (all federal judges are “officers of the United States”) creating “special judges” with equivalent powers to decide legal matters, preside over jury trials, oversee grand juries, etc. 

Make no mistake, Meese’s argument in favor of dismissing any indictment that private citizen Jack Smith has brought is strong--and that’s why Judge Cannon is seriously considering sending Smith and his political indictment to the garbage can.