Of the many motions pending in the classified documents case, U.S. District Judge Aileen Cannon is holding a hearing Friday on one that strikes at the heart of it: whether special counsel Jack Smith was lawfully appointed. Donald Trump is backed in his effort by outside parties — called “amici” or “friends of the court” — who are attacking that appointment.
Unusually, these third parties will be able to press their claims directly to the judge alongside the defense and the prosecution, which has an outside “friend” of its own appearing.
The legal issue at the center of the hearing is the Constitution’s appointments clause, which says that the president:
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper . . . in the Heads of Departments.
Under that clause, part of the dispute comes down to what type of “officer” Smith is: a “principal” one who would need Senate confirmation (which Smith doesn’t have), or an “inferior” officer working under Attorney General Merrick Garland (the “head” of the Justice Department), who appointed Smith under statutory authority given to the attorney general. Supreme Court precedent and the approval of special counsel Robert Mueller by the U.S. Court of Appeals for the D.C. Circuit support the latter position that Smith is an inferior officer appropriately appointed by Garland.
Nonetheless, an outside group featuring former attorney general Ed Meese (who served under Ronald Reagan) and Federalist Society co-chair Steven Calabresi argued in a brief ahead of the hearing that Garland lacked authority to appoint Smith and that the special counsel can’t be an inferior officer, as he “wields tremendous power, answerable to no one.” (They water down their own sweeping claim later in their brief, writing that Smith “effectively answers to no one.”)
Another group features law professor Seth Barrett Tillman, who also supported Trump’s appeal in the 14th Amendment insurrection clause case, Trump v. Anderson, in which the Supreme Court greenlit Trump’s presidential eligibility earlier this year despite his involvement in the Jan. 6, 2021, attack on the Capitol. Tillman wanted to participate in that Supreme Court hearing too, but the justices rejected him. Here, he argues to Cannon that Smith isn’t an “officer” but a mere employee who can’t exercise the power of a U.S. attorney.
The Trump-aligned outside groups somewhat contradict each other and Trump’s position, which calls Smith “at best” an employee. Still, if Cannon latches onto any defense-side claims, then that threatens the prosecution itself. The case doesn’t have a trial date, and whether one ever comes depends partly on the outcome of November’s presidential election, in which a Trump victory would likely crush this case and the federal election interference case in Washington.
Of course, the special counsel is defending his authority. Contrary to the Meese-backed claim, Smith maintains that he’s an “inferior” officer, noting that Garland supervises and can remove him, review his decisions and even override them. In response to the Tillman claim, Smith cites Supreme Court precedent to support the idea that the special counsel qualifies as an officer.
Backing Smith is the third outside group appearing Friday, which includes former prosecutors and elected officials. Calling the challenge against the special counsel “demonstrably incorrect,” they echo Smith’s point that he’s an inferior officer whose appointment was authorized. “The Special Counsel’s circumscribed role and jurisdiction, limited tenure, and effective control by the Attorney General render him an inferior officer,” they write. They’ll be represented by Matthew Seligman, with law professor Josh Blackman arguing for Tillman and Gene Schaerr representing the Meese group.
So, if the issue is as clear as Seligman and Smith say, why is Cannon holding this unusual hearing?
Good question. She doesn’t have to do so; she could have just denied Trump’s motion to dismiss without a hearing, much less one with outsiders weighing in.
But we’ve learned that Cannon does things her way, often to Trump’s benefit, even if only by way of the delay her approach wins him when she ultimately rules against him. She set Monday morning for a hearing on a related Trump motion under another constitutional provision — the Appropriations Clause — challenging Smith’s appointment and funding; not until Monday afternoon will she hear argument on Smith’s motion to modify Trump’s release conditions to stop him from making statements falsely suggesting that federal law enforcement tried to assassinate him when they executed the Mar-a-Lago search warrant.
While the Trump appointee may naturally be inclined toward the claims pushed by conservative legal luminaries, holding this unnecessary constitutional symposium at all is a victory for the defendant.
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