Jack Smith supports his own legitimacy with receipts of Bill Barr’s Bush-era appointments of special counsels

Special counsel Jack Smith (left) speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo: J. Scott Applewhite); the 77th and 85th U.S. Attorney General Bill Barr and then-President Donald Trump pictured together in 2020 (MANDEL NGAN/AFP via Getty Images)

Jack Smith supported the legitimacy of his own appointment as special counsel through a supplemental Sunday filing on the Mar-a-Lago docket, one with receipts from Bill Barr’s first stint as U.S. attorney general during the 1990s.

Barr, who reemerged during former President Donald Trump’s administration as attorney general and was perhaps the key force behind undoing what was left of special counsel Robert Mueller’s Russia probe, himself appointed special counsels while he was the chief law enforcement officer of the U.S. during George H.W. Bush’s presidency, Smith said.

While the U.S. Attorney General Merrick Garland-appointed special counsel has noted that every challenge of Mueller’s authority to prosecute failed in the courts over the years, Smith has also maintained that he is an “inferior officer” under the Constitution who didn’t need to be confirmed by the Senate and remains subject to the “plenary supervision” of the AG — meaning he’s not operating completely free of any “constraints” or “accountability,” contrary to what Trump’s defense and certain amici curiae have claimed.

After hearing arguments on the question Friday regarding Trump’s motion to dismiss over the asserted unlawful appointment of Smith, U.S. District Judge Aileen Cannon issued a brief order allowing the prosecution and the defense to “file a separate notice of supplemental authority.”

The Special Counsel’s Office responded Sunday with its notice, focusing on two questions Cannon asked during the hearing:

(1) whether any statutes in which Congress appears to vest the appointment of officers in “the President alone, in the Courts of law, or in the Heads of Departments,” U.S. Const. art. II, § 2, cl. 2, use the term “officials”; and (2) the names of the individuals appointed as Special Counsel by Attorney General William Barr.

While several of the statutes that Smith cited do include the requirement that appointees be subject to the “advice and consent of the Senate,” since those “officials” were “principal officers,” he otherwise pointed to Barr’s appointments of special counsels (formerly known as independent counsels) Nicolas Bua, Malcolm Wilkey, and Frederick Lacey to respectively probe Inslaw, a House of Representatives banking scandal, and Iraqgate in 1991 and 1992.

Of note, AG Garland’s appointment order of Smith cited as authorities the statutes 28 U.S.C. § § 509, 510, 515, and 533, and the Code of Federal Regulations, specifically 28 C.F.R. § 600.4(a).

And of additional relevant note, Smith cited a 1994 media advisory from Bob Dole — then the top Republican in the U.S. Senate — on the “Facts About Special Counsels & The Authority of the Attorney General.” In that advisory, Dole pointed out that Barr cited 28 U.S.C. § 533 and 28 C.F.R. § 600 to appoint special and/or independent counsels.