On December 21, 2023, a very interesting amicus brief was filed with the United States Supreme Court in the matter of United States v. Trump. The brief was filed in response to Special Counsel Jack Smith’s effort to convince the Court to take up the immunity issue raised by former President Trump rather than have it decided first in the D.C. Circuit Court of Appeals. The brief was filed by former U.S. Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson from Northwestern and Boston University Law Schools, respectively.

An amicus brief is one filed by persons who are not parties to the case but have some particularized interest or specialty with regard to the subject matter that might aid the Supreme Court in coming to a decision. Roughly translated, they are referred to as “Friend of the Court” briefs.

What the Meese brief argues is that Special Counsel Jack Smith occupies an office that is not recognized by law and was created by Attorney General Merrick Garland in violation of the Appointments Clause of the Constitution. The specific details and case law involving the Appointments Clause are beyond the scope of this one article, but the foundation of Meese’s argument is that Smith was given law enforcement authorities by Attorney General Garland that are equivalent to or greater than the authorities given to actual “Officers” of the United States – specifically U.S. Attorneys. However, unlike U.S. Attorneys who were appointed by the president and confirmed by the Senate, Special Counsel Smith – a private citizen – was put in place by Garland pursuant to a regulation of the Department of Justice.

Regulations are not “laws.” They are internal operating provisions that, for the most part, direct how the government departments conduct their business. The departments are authorized to create regulations by Congress, but some regulations are wholly internal and do not create rights or obligations for members of the public.

Jack Smith was named as “Special Counsel” under a regulation adopted by the Department of Justice after the independent counsel statute passed by Congress was allowed to expire without being extended near the end of the Clinton administration. Jack Smith’s position and authority were created by DOJ to solve an internal operating dilemma – how to conduct criminal investigations of a president or those close to him when the president is the source of the authority to conduct those investigations — a conflict of interest.

DOJ solved this problem at the end of the Clinton administration by adopting regulations that are set forth beginning at 28 CFR Sec. 600.1. That regulation reads:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

The Meese brief does not take issue with this regulation. Rather, the Meese brief addresses the question of the universe of individuals who can be lawfully appointed to the position of “Special Counsel” in order for this regulation to fit under federal statutes and the Constitution’s Appointment Clause.  

Meese states that the appointments of Patrick Fitzgerald, John Huber, and John Durham as past “Special Counsels” were all valid because, at the time of their appointment, each was serving as a Senate-confirmed United States Attorney within the Department of Justice. Their appointment as “Special Counsel” did not alter their authority; it just granted them the same authority over a particular investigation pursuant to the regulation that they otherwise would not have under their individual geographic limitations.

Meese and his co-authors first published the objection set forth in the current brief in law journals and other publications following Robert Mueller’s appointment as Special Counsel, given that he was an attorney in private practice at the time he was named Special Counsel to investigate former President Trump, but never to a court.

Now, Meese and his co-authors are making the claim against Jack Smith to a court because of his effort to have the Supreme Court take up the immunity issue. This created an opportunity for them to raise the question by arguing that Smith lacks jurisdiction to seek the Court’s relief because he is not truly an “Officer” of the United States.  

Congress alone has the authority to create federal offices not established by the Constitution. And the Attorney General cannot ex nihilo fashion offices as he sees fit. Nor has Congress given the Attorney General power to appoint a Special Counsel of this nature. Thus, without legal office, Smith cannot wield the authority of the United States, including his present attempt to seek relief in this Court.

The Meese brief notes that Attorney General Garland based his appointment of Smith on the language of 28 U.S.C. Sec. 515 – among other statutes – and that statute does concern the appointment by the Attorney General of “Special Attorneys.” The pertinent part of that statute reads:

 (a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings … which United States attorneys are authorized by law to conduct…

The Meese brief points out that while this authority to appoint “special counsels” may exist in a statute passed by Congress, that authority is nonetheless limited by provisions of the Constitution as to the individuals eligible for such appointment given the nature of the powers being conferred. Because Jack Smith was a private citizen when appointed, never having been nominated by a president or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by Garland to exercise prosecutorial authority equivalent to United States Attorneys. Any action purporting to create such a position – or “office” -- and vest it with the same authority as United States Attorneys is unconstitutional because it was not “created by law."

At the risk of doing great violence to the constitutional analysis set forth in the Meese brief, the following is a paraphrase of the argument advanced:

The Appointments Clause provides for the appointment of officers “which shall be established by Law.”  “Officers” are – obviously – appointed to “Offices,” and the “Office of the President” is the only office created by the Constitution. Congress creates all other “offices” of the Executive Branch by statute, hence the “established by law” language.

The power to create these offices and vest them with lawful authority is part of the “Necessary and Proper” clause to carry into execution the powers conferred on the Executive. "Established by law” has been interpreted to mean not by regulation or Executive Order, as only Congress passes laws. Congress has the exclusive constitutional authority to create federal offices. The Constitution does not give the president nor the heads of Executive Branch departments the power to create offices to which individuals may be appointed.

The Department of Justice and the Office of the Attorney General were both created by Acts of Congress and vested with the prosecutorial function of the Executive Branch. The DOJ was created by Congress with several “offices” – Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant Attorneys General, a U.S. Attorney for each federal judicial district, and the heads of the various law enforcement agencies created. These are all considered officers of the Executive Branch, and the individuals picked to lead them are subject to the Appointment Clause.

One problem with the regulations establishing a Special Counsel is that the language therein specifically contemplates naming someone from outside the government to fill the role. It is curious that even though that is the case, all the Special Counsels other than Mueller and Smith have been U.S. Attorneys in the government at the time of their appointment. That suggests that the issues raised by the Meese brief have been considered in the past, and a choice was made to violate the regulation in that regard rather than potentially violate the Constitution with an unlawful appointment.

Among the most compelling arguments made by the Meese brief comes at the end when it notes the incarnation of a Special Counsel vested with a Javert-like mission, as compared to the statutorily-created officers of the Justice Department – the Attorney General, Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant AGs, and 94 U.S. Attorneys – all subject to presidential appointment and Senate confirmation. According to the Biden DOJ, the Attorney General can simply create a Special Counsel Office, appoint a non-government actor to that post, grant him the power to wield the authority of a grand jury, draw resources from various federal law enforcement agencies, and direct their conduct, and seek search and arrest warrants when loosed upon a member of the public.

If the Meese brief’s argument is correct, then all the actions taken by Smith have been without lawful authority under federal law – beginning with the use of the grand jury in Washington D.C. to build the cases he has brought against former President Trump. The outcome would almost certainly mean that the cases would be dismissed.

What might come next? That’s a question for another day.

(EDITOR'S NOTE: Since the summer of 2021, Bill Shipley - "Shipwrecked Crew" - has been involved in representing approximately 40 individuals charged with crimes in connection with the events at the United States Capitol on January 6. His clients consist mainly of individuals who could not afford to hire attorneys of their choosing and were unhappy with the attorneys appointed for them by the court. The costs of providing them a defense comes mostly from contributions to a legal defense fund set up at GiveSendGo. You can support his work with contributions there to the January 6 Legal Defense Fund.)