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.
Former Attorney General Robert Jackson said in a December 1, 1940 speech at the Conference of U.S. Attorneys that:
“It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.”
Thank God Judge Cannon has scheduled oral argument on President Trump’s motion to dismiss Jack Smith’s prosecution of Trump for misuse of classified documents by a Justice Department employee who has not been nominated by the President and confirmed by the Senate. The judge should dismiss Smith’s case, and the Eleventh Circuit, and the U.S. Supreme Court should affirm that dismissal.
If, at that point, Attorney General Garland still wants Trump’s alleged misuse of classified documents investigated, as did not happen with former Obama Secretary of State, Hillary Clinton, then Attorney General Garland should follow the law and ask one of the 92 sitting, Senate-confirmed U.S. Attorneys to conduct any investigation that occurs. Attorney General Garland’s failure to follow the law and the Constitution is a national disgrace. Judge Cannon should get a national round of applause.
