Left: Special counsel Jack Smith turns from the podium after speaking about a Trump indictment in August 2023 (AP Photo/Jacquelyn Martin). Center: Trump stands on stage at the Libertarian National Convention in May 2024 (AP Photo/Jose Luis Magana). Right: Antonin Scalia (AP Photo/Charles Rex Arbogast, File).
A legal group founded by late evangelical minister Pat Robertson has joined the fray in an effort to convince a federal court of appeals that Donald Trump‘s Mar-a-Lago indictment should remain dismissed.
In their 39-page amicus curiae – or friend of the court – brief filed late Friday afternoon, the American Center for Law & Justice (ACLJ) stakes out a by-now familiar position to docket-watchers. Namely: The idea that special counsel Jack Smith was unlawfully appointed to his position and, therefore, his prosecution of Trump was equally unlawful.
In sum and substance, the ACLJ’s brief argues the special counsel’s office was created in violation of the Appointments Clause of the U.S. Constitution.
“The principal officers of the United States may only be appointed by the President and may only be confirmed by Congress,” the brief begins. “Special Counsel Jack Smith assumes that he is not such an officer and presents no argument to this Court to support that conclusion. This Court should not take that premise for granted. On the contrary, the evidence shows that Special Counsel Smith is, in fact, a principal officer and that regardless of statute, he could not be appointed by the Attorney General.”
The group’s constitutional argument, while similar to other such arguments, focuses its legal analysis on separation of powers concerns. And, in service of this position, the ACLJ quotes the late Justice Antonin Scalia in order to make their point.
From the filing, at length:
As Justice Scalia pointed out in Edmond v. United States, “the Appointments Clause of Article II is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” That structural safeguard must be preserved against encroachment here by recognizing that the vast authority entrusted to Special Counsel Smith rendered him a principal officer who must have been confirmed by the Senate. Alternatively, there must have been at a bare minimum statutory authorization of his role as an officer. No such authorization exists. Accordingly, in either case, his appointment was unlawful.
“If Jack Smith is a principal officer, then the Appointments Clause absolutely requires that he have been appointed by the President and confirmed by the Senate, which indisputably did not occur here,” the brief continues. “A statute formerly allowed the Attorney General to appoint special counsels, but that statute has expired. In its absence, there is simply no authority for the Attorney General to replace those attorneys confirmed by Congress, United States Attorneys, with a new officer, a Special Counsel who has never received such a confirmation.”
More Law&Crime coverage: Court to consider former Clinton investigator turned Trump impeachment lawyer’s argument that Judge Cannon ‘correctly dismissed’ Jack Smith’s Mar-a-Lago case
The filing continues to state the problem as the group sees it:
Special Counsel Smith, unlike United States Attorneys, may only be removed for cause. Unlike United States Attorneys, he does not have to report to the Attorney General or proceed according to his instruction and direction. In fact, Special Counsel Smith has expressly been granted the authority to act independently of the Attorney General and not be subject to his direction or control. The Attorney General has only a narrowly defined ability to attempt to overrule the Special Counsel’s decisions; otherwise, Special Counsel Smith answers to no one.
The ACLJ’s brief is, of course, not the first, nor will it be last, filing containing such arguments submitted to the U.S. Court of Appeals for the 11th Circuit as the two main parties – and their associated allies and hangers-on – jostle for positions.
As Law&Crime previously reported, the ACLJ’s arguments are among many in a long march through two distinct federal dockets; they mirror a prior fight between dueling amici groups when the Mar-a-Lago case was overseen by U.S. District Judge Aileen Cannon.
That fight began with Trump’s own defense citing the clauses in a February motion to dismiss. Then, right-of-center groups, law professors, and legal scholars argued against Smith’s appointment in a deluge of motions practice allowed by the district court. Oppositely, left-of-center law professors, historians, and legal scholars argued Smith was validly — and non-controversially — exercising his authority.
More Law&Crime coverage: ‘The challenged appointment must be invalidated’: Conservative nonprofits join the fight against Jack Smith in 11th Circuit to try and affirm Mar-a-Lago case dismissal
The lower court, of course, famously ordered a kibosh on proceedings based on that novel understanding of the Appointments Clause advanced by Supreme Court Justice Clarence Thomas.
The analysis offered by Thomas came in the landmark ruling where Chief Justice John Roberts created the concept of presidential immunity in criminal cases and awarded a certain and distinct, and to a lesser degree amorphous, amount of immunity specific to Trump.
Thomas was the only justice to cite the long-simmering Appointments Clause issue in an unfavorable light for the government in any of the opinions attached to Trump v. United States. The majority opinion actually lists several ways in which the appointments power inures to the executive’s benefit. Thomas was also the only justice to mention the phrase “Appointments Clause” directly.
In August, Smith filed his opening salvo in a bid to resuscitate the long-beleaguered case. Since then, the 45th president has raised the clauses in an effort to affirm the lower court’s dismissal of the case.
Now, the amici are back in full force.
This latest round of briefing is something of a proving ground for many conservative constitutional lawyers as they look to convince a federal court of appeals – somewhat out of order – having already convinced one federal district judge and one Supreme Court justice.
The ACLJ, for their part, notes that such arguments have, in fact, been a long time coming – from them, at least.
“The ACLJ is particularly equipped to address this matter as counsel for the ACLJ represented President Trump related to the appointment and investigation of Special Counsel Robert Mueller, where the constitutionality of the appointment of a private citizen as Special Counsel was at issue,” their brief notes.
And, while necessarily essayed in Trump’s favor again, the conservative group highlights what it views as a fundamental, and long-running problem with the U.S. Department of Justice in regard to the general concept of special counsels.
“This case presents a straightforward problem; the statute authorizing the Attorney General to appoint independent counsel has expired but nonetheless the Attorney General has chosen to continue to attempt such appointments,” the brief goes on. “The Attorney General has appointed private citizens like Robert Mueller or Jack Smith as special counsels with broad authority to replace the United States Attorneys who were actually confirmed by Congress, despite no statute allowing the Attorney General to do so.”
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