Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
The battle over the dismissal of the indictment in the Mar-a-Lago documents case is heating up in the U.S. Court of Appeals for the 11th Circuit, as a group of conservative amici curiae, or friends of the court, on Friday argued to maintain the pro-Donald Trump status quo.
In their 35-page brief in support of the defendants, several right-wing nonprofit groups — led by 501(c)(3) America’s Future — argue that special counsel Jack Smith was unconstitutionally appointed to his position in violation of the appointments and appropriations clauses.
“Because there was no legislation specifically creating an office of Special Counsel when the Attorney General appointed Mr. Smith on November 18, 2022, the challenged appointment must be invalidated because Congress had not established the office of Special Counsel as the Appointments Clause requires,” the filing reads.
As is often the case in the several-months-long litigation over the constitutional vitality of Smith’s appointment, the appropriations clause argument is a knock-on, or derivative, claim. To hear opponents of the special counsel’s office tell it, any spending that occurred after the unlawful appointment is, perforce, also unlawful.
Notably, the appointments and appropriations clauses-related dispute playing out before the court of appeals is almost an exact replica of a prior fight between dueling amici groups when the Mar-a-Lago case was being 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.
The lower court, of course, famously ordered a kibosh on proceedings based on that novel understanding of the Appointments Clause of the U.S. Constitution advanced by Supreme Court Justice Clarence Thomas.
The analysis offered by Thomas came in the landmark ruling where Chief Justice John Roberts issued a broad grant of presidential immunity 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, several of the same amici are back to restate their case before the three-judge panel that will take the first of perhaps several looks at how Cannon squelched the government’s case over the summer.
More Law&Crime coverage: ‘Correctly dismissed the indictment’: Lawyers, professors, and former prosecutor go to bat for Trump in 11th Circuit filing saying Mar-a-Lago judge did nothing wrong
The crux of the amici’s argument is that Smith is “acting as a principal officer” due to the lack of supervision inherent in his job and because his authority is significant enough “to bind the United States as he executes his responsibilities in the two matters that he has been assigned.”
This wide berth, the motion argues, takes the prosecutor well beyond either mere employee or inferior officer status.
The amici’s constitutional argument here goes on, at length:
The delegation of authority claimed by the Special Counsel presupposes a grant of legislative power to the Attorney General to establish an office of the United States in violation of the Framers’ check on the power of the Executive Branch to create offices by requiring they “be established by Law.” The claimed statutory authority of the Attorney General to create an office that exercises “the full power and independent authority” of a United States Attorney with no effective supervision of or control over the Special Counsel violates the non-delegation doctrine.
In other words, and in substantially similar arguments oft-advanced in the case so far, the litigants contend Smith’s office is so powerful and imbued with such longevity he should have been appointed under the “Advice and Consent of the Senate” rules — akin to a cabinet position, administrative agency head, or life-appointed federal judge.
And, they argue, there’s really nothing like Smith’s role in U.S. history that actually supports the continued firmness of his position. This argument is a direct rejoined to the government’s claims that the special prosecutor in the Richard Nixon/Watergate scandal — and the concomitant court rulings vindicating that prosecutor — inure to Smith’s benefit.
“This nation’s checkered history of appointing Special Prosecutors, Independent Counsel, and Special Counsel provides no consistent or relevant factual pattern that can overcome the constitutional bar to appointing the Special Counsel to an office which has not been ‘established by Law,”” the motion argues. “The examples on which Special Counsel Smith relies are inapposite and cannot overcome the express requirement of the Appointments Clause.”
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
But, as was the case before the district court, soon other amici will join the appellate fight — for and against the indictment’s dismissal.
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