Left: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
The Special Counsel’s Office finally filed its appellate brief Monday in its quest to undo Judge Aileen Cannon’s dismissal of Donald Trump’s Mar-a-Lago Espionage Act indictment, and Jack Smith, buried deep within the 57-page document, took time to say he is not really the “private citizen” he’s been “fundamentally mischaracteriz[ed]” as.
In mid-July, Cannon echoed the Trump v. United States immunity case concurrence of Justice Clarence Thomas when agreeing that Smith’s appointment violated the Appointments Clause of the Constitution, as the “private citizen” hired from outside of government acted as a U.S. Attorney without having been confirmed by the Senate and “without a valid office” established by law.
“[I]s there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no,” Cannon wrote, also making the case that Congress did not clearly intend to “authorize the appointment of private citizens,” even though the “past half century has shown an uptick in private-citizen special counsels,” like Robert Mueller, the former FBI director who emerged from private practice to lead the Russia investigation.
The judge added that although “there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history,” few to none “actually resemble the position of Special Counsel Smith,” whom she called “a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”
Smith has now countered that U.S. Attorney General Merrick Garland, as the head of the DOJ, was well within his congressionally vested power and statutory authority to directly appoint him as an “inferior officer” special counsel and that, in any event, the “private citizen” critique is “fundamentally mischaracterizing” his “role” and “attached undue weight” to his employment status prior to being tapped as special counsel, when the then former acting U.S. attorney was again transformed into a DOJ officer.
“According to the district court, ‘Mr. Smith is a private citizen exercising the full power of a United States Attorney,”” the brief said. “But he is not a private citizen: he is a sworn officer of the Department of Justice.”
That aside, the brief immediately delved into history, telling of the time in 1865 that private citizen lawyers were tasked with directing the treason prosecution of Jefferson Davis, the president of the Confederate States, after the Civil War.
“There was a period in American history when ‘private citizens’ prosecuted some of the most consequential cases of the day, such as the prosecution of Jefferson Davis. But that has not been the practice for more than 150 years,” the brief said. “And to the extent the district court used the term ‘private citizen’ to refer to someone who was not already a member of the Department of Justice before receiving his commission, that definition applies equally to every member of the Department and has no relevance to the Appointments Clause or to the statutes authorizing the appointment of Special Counsel Smith.”
In another part of the brief, Smith again focused on the “outside attorneys” on the Davis case and a prosecution connected to the assassination of President Abraham Lincoln.
“And in the wake of the Civil War, Attorneys General appointed outside attorneys to prosecute some of the most significant cases of the day, including the prosecution of Jefferson Davis for treason and the prosecution of John Surratt for aiding and abetting the assassination of President Lincoln,” the filing said.
Historic details like these, Smith maintained, were “erroneously disregarded” by Cannon as “spotty.”
“The long history of Attorney General appointments of special counsels confirms the lawfulness of the Special Counsel’s appointment. From before the creation of the Department of Justice until the modern day, Attorneys General have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Department of Justice itself), Watergate, and beyond,” the brief said. “The district court erroneously disregarded this history as ‘spotty’ or ‘ad hoc,’ giving undue emphasis to superficial differences in the appointment and roles of certain special and independent counsels.”
Read the brief here.
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