Left: Trump’s Ukraine impeachment attorney, former Clinton independent counsel Robert Ray, addresses the U.S. Senate on Jan 27, 2020, calls the case partisan (PBS/YouTube). Right: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida).
Signaling something of a continuation of the amici curiae fight over special counsel Jack Smith’s authority that preceded Judge Aileen Cannon’s decision to toss Donald Trump’s Mar-a-Lago classified documents prosecution, the U.S. Court of Appeals for the 11th Circuit on Monday allowed the former Whitewater independent counsel, a law professor, and a legal organization to file a brief saying the dismissal didn’t go far enough.
The 11th Circuit on Monday issued a short order granting the amici curiae (or “friends of the court”) — Robert Ray, the originalist Landmark Legal Foundation, Ray, and law professor Seth Barrett Tillman — permission to file their brief.
Ray once took over for Ken Starr in investigating the Clintons and Bill Clinton’s lies about the Monica Lewinsky scandal, but he ultimately did not indict the former president. He later became a lawyer for Trump in the 2020 Ukraine impeachment trial in the U.S. Senate, an impeachment that ended in acquittal just like the Jan. 6 impeachment that followed a year after.
At the start of October, Ray headlined the amici asserting that their views could be of some “assistance” to the 11th Circuit because Cannon’s dismissal order concluding Smith was unlawfully appointed and unlawfully funded in violation of the Constitution in a few instances cited their supplementary arguments.
While Jack Smith has repeatedly argued that history is on his side, the amici have so far said Cannon “correctly dismissed the indictment” but that the ruling could have and should have been worse for the special counsel.
“The District Court described the ‘historical backdrop’ supporting Smith’s case as ‘spotty.’ The record here is not spotty—it is near-empty,” the brief said. “The District Court understated how weak the historical record is for Smith.”
The amici then walked through the four different reasons they say that Cannon’s judgment should be affirmed, including that Smith is “a ‘mere’ employee” of the DOJ who doesn’t actually have the power of a U.S. attorney confirmed by the Senate and that Morrison v. Olson — the 1988 Supreme Court decision that the independent counsel law, the Ethics in Government Act, didn’t violate the separation of powers or the Appointments Clause (to which only Justice Antonin Scalia dissented) — “should be overruled”:
First, from the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation. And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had “unique authority and tenure.” 418 U.S. 683, 694 (1974). Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal. Apart from those compromises, this insulation would be inconsistent with Bowsher v. Synar. 478 U.S. 714 (1986). Whether the Nixon analysis is holding or dicta, it is not controlling, and it should not be extended to today’s context under today’s statutory and regulatory framework.
Second, Special Counsel Jack Smith (“Smith”) cannot rely on the permanent indefinite appropriation found in a “note” to 28 U.S.C. §591. In 2004, the Government Accountability Office determined that this appropriation can be used for “investigat[ing] and prosecut[ing] high ranking government officials.” But Trump was not a “high ranking” official when he was indicted, and all the alleged conduct took place after he was out of office. In these circumstances, the funding mechanism in Section 591’s note cannot be used to pay Smith.
Third, Supreme Court precedent distinguishes between officers and employees. An “Officer of the United States” position must have a duration that is continuous. Though Smith’s prosecution has already continued for several years, and his duties are regular, his position is not continuous, because his extant position would not continue to a successor. Morrison v. Olson, 487 U.S. 654, 672 (1988). At most, Smith is a mere “employee” who cannot exercise the sweeping powers of a Senate-confirmed U.S. Attorney.
Finally, Amici have properly preserved for review by the Supreme Court the question of whether Morrison v. Olson should be overruled. The Special Counsel, like the Independent Counsel, still comes as a wolf. Id. at 699 (Scalia, J., dissenting).
Read the amicus brief here.
Colin Kalmbacher contributed to this report.
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