UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
/
ORDER GRANTING MOTION TO DISMISS SUPERSEDING INDICTMENT
BASED ON APPOINTMENTS CLAUSE VIOLATION
Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful
Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this
Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel
Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S.
Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also
violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address
the proper remedy for that funding violation given the dismissal on Appointments Clause grounds.
The effect of this Order is confined to this proceeding.
INTRODUCTION
The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter,
“Special Counsel Smith” or “Special Counsel”) in two consequential respects, both of which are
matters of first impression in this Circuit, and both of which must be resolved before this
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prosecution proceeds further [ECF No. 326]. The first is a challenge to his appointment under the
Appointments Clause, which provides the exclusive means for appointing “Officers of the United
States.” Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all “Officers of
the United States”—whether “inferior” or “principal”—must be appointed by the President and
confirmed by the Senate. Id. It then goes on to direct that “Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in Heads of Departments.” Id. For purposes of this Order, the Court accepts the Special
Counsel’s contested view that he qualifies as an “inferior Officer,” not a “principal” one, although
the Court expresses reservations about that proposition and addresses those arguments below. The
Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money
from being “drawn from the Treasury” unless such funding has been appropriated by an act of
Congress. Art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law. . . .”).
Both the Appointments and Appropriations challenges as framed in the Motion raise the
following threshold question: is 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. None of the statutes cited as legal authority for the appointment—
28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing
power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial
power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory
arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade
otherwise.
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The bottom line is this: The Appointments Clause is a critical constitutional restriction
stemming from the separation of powers, and it gives to Congress a considered role in determining
the propriety of vesting appointment power for inferior officers. The Special Counsel’s position
effectively usurps that important legislative authority, transferring it to a Head of Department, and
in the process threatening the structural liberty inherent in the separation of powers. If the political
branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate
and prosecute this action with the full powers of a United States Attorney, there is a valid means
by which to do so. He can be appointed and confirmed through the default method prescribed in
the Appointments Clause, as Congress has directed for United States Attorneys throughout
American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through
enactment of positive statutory law consistent with the Appointments Clause.
This Order proceeds as follows. After laying forth pertinent factual and procedural
background leading to the present Motion, the Court summarizes the legal principles underlying
the Appointments Clause and the separation-of-powers doctrine on which it rests. The Court then
surveys the statutory structure of the Department of Justice, focusing on the provisions which grant
the Attorney General appointment authority. Following that contextual summary, the Court
engages with the text, context, and structure of each of the statutes cited in the Appointment Order.
Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixed
historical record to deviate from the absence of such authority—the Court addresses the Supreme
Court’s dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974).
As the Nixon decision and record bear out, the Attorney General’s statutory appointment authority,
or the matter of the Appointments Clause more generally, was not raised, argued, disputed, or
analyzed; at most, the Supreme Court assumed without deciding that the Attorney General
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possessed statutory appointment authority over the special prosecutor involved in that action.
Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to the
question whether Special Counsel Smith is a principal officer requiring Presidential nomination
and Senatorial consent. On that issue, although there are compelling arguments in favor of a
principal-officer designation given the regulatory framework under which he operates, the Court
rejects the position based on the available Supreme Court guidance. The Court then examines the
question of remedy, concluding that dismissal of this action is the only appropriate solution for the
Appointments Clause violation. Finally, the Court considers the Appropriations Clause challenge
to the funding of Special Counsel Smith, concluding for many of the same reasons that Congress
has not authorized the appropriation of money to be drawn for the expenses of his office. The
Order concludes there, finding it unnecessary under the current posture to reach the remedy
question for the Appropriations Clause violation.
PROCEDURAL HISTORY AND OVERVIEW OF MOTION
On June 8, 2023, a grand jury in the Southern District of Florida returned an indictment,
signed by the Special Counsel, charging former President Trump with thirty-one counts of willful
retention of national defense information in his Mar-a-Lago residence, in violation of 18 U.S.C.
§ 793(e) [ECF No. 3]. The indictment also brought seven conspiracy and concealment charges
against Trump and Waltine Nauta, collectively and/or individually [ECF No. 3 (charging 18
U.S.C. §§ 1512(k), 1512(b)(2)(A), 1512(c)(2), 1519, 1001(a)(2), 2)]. On July 27, 2023, the grand
jury returned a Superseding Indictment, also signed by the Special Counsel, increasing the number
of total charges to forty-two, and adding a third defendant, Carlos De Oliveira [ECF No. 85].
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On February 22, 2024, Trump filed the instant Motion [ECF No. 326].1 The Special
Counsel filed an Opposition on March 7, 2024 [ECF No. 374], and Trump filed a Reply on March
24, 2024 [ECF No. 414].2 Three sets of amicus parties filed briefs on the Appointments Clause
question [ECF Nos. 364-1, 586–587, 618 (“Meese amici”); ECF No. 410-2 (“Landmark Legal
amici”); ECF No. 429 (“Constitutional Lawyers amici”)]. And the Court later ordered and
received supplemental briefing addressing the need for factual development on the Motion
[ECF No. 588; see ECF No. 617, 619–620]. Finally, on June 21 and 24, 2024, the Court heard
lengthy oral argument on the Motion from the parties and the authorized amici.3
The Motion seeks dismissal of the Superseding Indictment “based on the unlawful
appointment and funding of Special Counsel Jack Smith” [ECF No. 326]. The Motion argues that
his appointment violates the Appointments Clause for two basic reasons: (1) Special Counsel
Smith was not nominated by the President or confirmed by the Senate, as would be required for
the appointment of a principal officer or for the appointment of an inferior officer as to which
Congress has not authorized such appointment, and (2) even accepting the position that he qualifies
as an inferior officer, none of the statutes cited in the Appointment Order, see 28 U.S.C. §§ 509,
510, 515, 533, vests the Attorney General with authority to appoint a special counsel “with the full
power and authority to exercise all investigative and prosecutorial functions of any United States
Attorney,” as is the case with Special Counsel Smith, see 28 C.F.R. § 600.6. The Motion
1
Defendants De Oliveira and Nauta join the Motion [ECF Nos. 331, 611].
2
Defendant Trump stood trial in New York state criminal court from April 15, 2024, through late
May 2024 [ECF No. 421].
3
The Appointments Clause challenge was argued on June 21, 2024; the Appropriations Clause
challenge was argued on June 24, 2024. Transcripts for these hearings can be located at
ECF Nos. 647 and 648.
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separately raises an Appropriations Clause challenge because (1) he is drawing on a permanent
indefinite appropriation reserved for an “independent counsel” under a statutory appropriation that
does not apply to him, see Department of Justice Appropriations Act of 1988, Pub. L. No. 100-
202, 101 Stat. 1329 (Dec. 22, 1987) (hereinafter, “Indefinite Appropriation”); and (2) there is no
“other Law” authorizing the appropriation as to him [ECF No. 326].
The Special Counsel opposes both challenges. As to the Appointments Clause issue, he
urges that the Attorney General exercised statutory authority in 28 U.S.C. §§ 515 and 533 to
appoint him, citing the Supreme Court’s decision in United States v. Nixon, 418 U.S. 683 (1974),
D.C. Circuit authority, and historical practice [ECF No. 374 pp. 1–16]. As to the Appropriations
Clause issue, Special Counsel Smith argues that he lawfully draws from the Indefinite
Appropriation for independent counsels, because he retains substantial independence from the
Attorney General and was appointed pursuant to “other law” in the form of the same statutes cited
above—28 U.S.C. §§ 515 and 533. In any case, Special Counsel Smith continues, any
appropriations defect should not result in dismissal of the Superseding Indictment because the
Department could lawfully have drawn funds from another source to investigate and prosecute this
action [ECF No. 374 p. 25].
FACTUAL BACKGROUND
I. Smith Appointment Order
On November 18, 2022, by Order Number 5559-2022, Attorney General Garland
appointed John L. Smith, an attorney from outside the United States Government, to serve as
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Special Counsel for the United States Department of Justice.4 Special Counsel Smith was not
nominated by the President or confirmed by the Senate.
The Appointment Order states that Attorney General Garland is “vested” with appointment
authority to issue the Appointment Order pursuant to 28 U.S.C. §§ 509, 510, 515, 533—statutes
discussed further below. The Appointment Order then authorizes the Special Counsel to conduct
two specified “ongoing investigation[s]” and to “prosecute federal crimes arising from” those
investigations. Appointment Order at 1–2. The first investigation relates to “efforts to interfere
with the lawful transfer of power following the 2020 presidential election.” Id. at 1. The second
investigation is “referenced and described in the United States’ Response to Motion for Judicial
Oversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC
(S.D. Fla. Aug. 30, 2022) (ECF No. 49 at 5–13), as well as any matters that arose or may arise
directly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a).” Id. at 2. The
instant Superseding Indictment—and the only indictment at issue in this Order—arises from the
latter investigation.
With respect to funding, all parties agree that Special Counsel Smith’s office has been
funded since its inception using “a permanent indefinite appropriation . . . established within the
Department of Justice to pay all necessary expenses of investigations and prosecutions by
independent counsel appointed pursuant to the provisions of 28 U.S.C. § 591 et seq. [now expired]
or other law.” 101 Stat. 1329. This is a limitless appropriation. As of September 2023, Special
4
The Appointment Order is made part of the record on this Motion and is referred to herein as the
“Appointment Order.” See https://www.justice.gov/d9/press-
releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf. The Department of Justice’s
main webpage contains an “Oversight” category with links to webpages for various Special
Counsel’s Offices, including that of Jack Smith. https://www.justice.gov/agencies/chart/grid;
https://www.justice.gov/sco-smith.
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Counsel Smith’s Statement of Expenditures reflects $12,807,668 in direct expenses drawn from
the Indefinite Appropriation, plus an additional $11,096,601 in “component” expenses
“attributable to this investigation,” also drawn from the Indefinite Appropriation.5
II. Special Counsel Regulations
At the end of the Appointment Order, there is the following reference to Department of
Justice regulations: “Sections 600.4 to 600.10 of title 28 of the Code of Federal Regulations are
applicable to the Special Counsel.” Appointment Order at 2. Those regulations, hereinafter
referred to as the “Special Counsel Regulations” or “Regulations,” are in force today, and they
stem from a Final Rule promulgated by the Office of the Attorney General in July 1999 and later
codified at 28 C.F.R. §§ 600.1 through 600.10. See Office of Special Counsel, 64 Fed. Reg. 37038
(July 9, 1999).6 The Notice of Final Rule states that the regulations “replace the procedures for
appointment of independent counsel pursuant to the Independent Counsel Reauthorization Act of
1994,” and it cites as statutory authority the following seven statutes in Title 28, Chapter 31 of the
United States Code: 28 U.S.C. §§ 509, 510, 515–519.7
The Special Counsel Regulations consist of ten sections spanning various topics, ranging
from jurisdiction, power, staffing, conduct, and accountability, among others. 28 C.F.R. §§ 600.1–
600.10. As most relevant here, and as explored more fully below, the Special Counsel Regulations
5
Special Counsel’s Office – Smith Statement of Expenditures, November 18, 2022 through March
31, 2023; Special Counsel’s Office – Smith Statement of Expenditures, April 1, 2023 through
September 30, 2023. See https://www.justice.gov/sco-smith (last visited July 13, 2024). No
additional financial statements have been published yet.
6
This rule was deemed exempted from the notice and comment requirements of the Administrative
Procedure Act on the view that it “relate[d] to matters of agency management or personnel.” 64
Fed Reg. at 37041.
7
28 U.S.C. § 533, cited in the Appointment Order, is not among the authorizing statutes listed in
the Final Rule.
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➢ declare the grounds for appointing a Special Counsel from “outside the United States
Government,” id. §§ 600.1, 600.3 (referencing “a conflict of interest for the Department
or other extraordinary circumstance”);
➢ direct the Attorney General to “establish[]” the “jurisdiction of a Special Counsel”
through a “specific factual statement of the matter to be investigated,” with any
expansion of that jurisdiction to be determined by the Attorney General, id. § 600.4(a)–
(b);
➢ authorize the Special Counsel to wield, “within the scope of his or her jurisdiction, the
full power and independent authority to exercise all investigative and prosecutorial
functions of any United States Attorney,” id. § 600.6, and without being “subject to the
day-to-day supervision of any official of the Department,” id. § 600.7(b);
➢ permit the Attorney General to remove the Special Counsel but only “for misconduct,
dereliction of duty, incapacity, conflict of interest, or for other good cause, including
violation of Departmental policies,” id. § 600.7(d);
➢ give the Special Counsel discretion to “determine whether and to what extent to inform
or consult with the Attorney General or others within the Department about the conduct
of his or her duties and responsibilities,” id. § 600.6;
➢ permit (but do not require) the Attorney General to seek explanations from the Special
Counsel about “any investigative or prosecutorial step,” id. § 600.7(b);
➢ dictate that the Special Counsel “shall comply with the rules, regulations, procedures,
practices and policies of the Department of Justice,” id. § 600.7(a); and
➢ authorize the Attorney General, on a permissive basis, and after “review,” to determine
that a particular action of the Special Counsel should not be pursued because it is “so
inappropriate or unwarranted under established Departmental practices,” id.
§ 600.7(b)—except that if the Attorney General makes that determination, he must
notify Congress of his decision to countermand the Special Counsel, id. § 600.9.
Distilled down for present purposes, the Special Counsel Regulations mandate that the
Special Counsel be selected from outside the Department, and then they empower that outside
attorney to exercise “all investigative and prosecutorial functions of any United States Attorney”
within his jurisdiction. Id. § 600.6.
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III. Independent Counsel Act, Morrison v. Olson, and Lapse of Independent Counsel
Act
Prior to promulgation of the Special Counsel Regulations—specifically, from 1978
through 1999 (with a two-year gap between 1992 and 1994)—there was a statute that expressly
authorized the appointment of independent counsels. That statute was the now-expired
Independent Counsel Act, passed as part of the Ethics in Government Act of 1978. Pub. L. No.
95–521, §§ 601–04, 92 Stat. 1824, 1867–75, as amended by Pub. L. No. 97–409, 96 Stat. 2039
(1983), Pub. L. No. 100–191, 101 Stat. 1293 (1987), Pub. L. No. 103–270, 180 Stat. 732 (1994).
Under the now-expired Independent Counsel Act, Congress authorized the Attorney
General—after finding “reasonable grounds to believe that further investigation [was]
warranted”—to request that a three-judge panel (termed “division of the court”) appoint an
“independent counsel” to “fully investigate and prosecute” violations of federal criminal law by
certain categories of executive persons, including Presidents and former Presidents for a year after
leaving office. 28 U.S.C. § 591(a)–(b); id. § 592(c)(1)(A), (d). Under that framework, the judicial
division would “appoint an appropriate independent counsel” from outside the United States
government and “define that independent counsel’s prosecutorial jurisdiction.” Id. § 593(b)(1)–
(2); see also id. § 593(c) (authorizing judges to “expand the prosecutorial jurisdiction of an
independent counsel”). Once appointed, the independent counsel would have the “full power and
independent authority to exercise all investigative and prosecutorial functions and powers of the
Department of Justice, the Attorney General, and any other officer or employee of the Department
of Justice.” Id. § 594(a).
The legality of the Independent Counsel Act took center stage in Morrison v. Olson, 487
U.S. 654 (1988), a suit challenging and upholding the statute under the Appointments Clause and
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other constitutional provisions and principles.8 In 1994, after Morrison, Congress reauthorized
the Independent Counsel Act in accordance with its five-year sunset provision. 28 U.S.C. § 599.9
But then in 1999, when the matter of reauthorization returned to the legislative table—and in the
wake of meaningful criticism of the Act10—Congress let the Act expire and has never reauthorized
it since. At that time, then-Attorney General Janet Reno opposed reauthorization in a public
statement to Congress.11 Attorney General Reno expressed various criticisms of the Act12 and
called for a return to what she described as a “non-statutory independent counsel” built on a set of
preexisting regulatory procedures that were premised on the Attorney General’s “authority to
8
The Supreme Court rejected related challenges to the appointment under Articles II and III of the
Constitution. Id. at 684, 678–696.
9
Congress reauthorized the Act in 1983 and 1987 but then let it expire in 1992, ultimately
reauthorizing it in 1994. See Ethics in Government Act Amendments of 1982, Pub. L. No. 97-
409, 96 Stat. 2039 (1983); Independent Counsel Reauthorization Act of 1987, P.L. 100-191, 101
Stat. 1293 (1987); Independent Counsel Reauthorization Act of 1994, P.L. 103-270, 108 Stat. 732
(1994).
10
Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2135–
2137 (1998) (recommending that Congress enact an amended statute authorizing the President to
appoint a special counsel, with advice and consent of Senate).
11
See Statement of Attorney General Janet Reno Concerning the Independent Counsel Act,
Committee on Governmental Affairs, United States Senate (Mar. 17, 1999), available at
https://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm.
12
Attorney General Reno observed that the Act “distort[ed]” the process of prosecutorial discretion
by “creat[ing] a new category of prosecutors” with “no practical limits on their time or budgets,”
thus artificially incentivizing prosecution; vested an independent counsel “with the full gamut of
prosecutorial powers, but with little of its accountability”; applied too broadly to various categories
of public officials, most of whom could be prosecuted by the Department of Justice without
conflicts; contained an unduly broad and malleable “triggering mechanism,” resulting in
appointments that ordinarily would not have been sought; created disputes about the independent
prosecutor’s jurisdiction; made removal of an independent counsel by the Attorney General
politically difficult; and contained a final-report requirement that “created a forum for unfairly
airing a target’s dirty laundry,” among other issues. Id.
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appoint a special prosecutor when the situation demands it.” Id. Then, a day after the Independent
Counsel Act expired, the same Special Counsel Regulations described above came into being to
“replace the procedures for appointment” under the lapsed Act. See 64 Fed. Reg. 37038-01.
As noted, the Special Counsel Regulations have remained in place without change since
their effective date in July 1999, with at least one unsuccessful legislative effort in 2019 to enact
a special counsel statute.13 No such special counsel statute exists today, and no such statute existed
in November 2022 when Attorney General Garland issued the Appointment Order.
APPOINTMENTS CLAUSE DISCUSSION
I. Background Legal Principles
Article II, Section 2, Clause 2:
He shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur; and he shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,
and all other 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 President alone, in the Courts of Law, or in the Heads of Departments.
Art. II, § 2, cl. 2.
The Appointments Clause “prescribes the exclusive means of appointing ‘Officers of the
United States.’” Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237, 244 (2018). An “Officer of the
United States,” as distinct from a non-officer employee, is any appointee who exercises
“significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1, 126
(1976), and who occupies a “‘continuing’ position established by law,” Lucia, 585 U.S. at 245
(quoting United States v. Germaine, 99 U.S. 508, 511–12 (1878)); Edmond v. United States, 520
13
See S. 71, 116th Cong. (2019) (proposed legislation copying Special Counsel Regulations almost
verbatim).
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U.S. 651, 662 (1997) (“The exercise of ‘significant authority pursuant to the laws of the United
States; marks, not the line between principal and inferior officer for Appointments Clause
purposes, but rather, as we said in Buckley, the line between officer and nonofficer.” (quoting
Buckley, 424 U.S. at 126)).
The Appointments Clause establishes “two classes” of Constitutional officers: “principal”
officers and “inferior” officers. Germaine, 99 U.S. at 509–10.14 Principal officers must be
appointed by the President, with the advice and consent of the Senate. Art. II, § 2, cl. 2; Edmond,
520 U.S. at 659; United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021). That mechanism—
Presidential nomination and Senatorial confirmation—is the “default manner of appointment” for
principal and inferior officers. Arthrex, Inc., 594 U.S. at 12. But the Appointments Clause
provides another means to facilitate inferior-officer appointments, and it does so through the so-
called “Excepting Clause.” Edmond, 520 U.S. at 660. That clause permits Congress—“by law,”
and as it “thinks proper”—to “vest” the appointment of such inferior officers in three places, and
only three places: “in the president alone, in the Courts of Law, or in the Heads of Departments.”
Art. II, § 2, cl. 2. But “any decision to dispense with Presidential appointment and Senate
confirmation is Congress’s to make, not the President’s.” Weiss v. United States, 510 U.S. 163,
187 (1994) (Souter, J., concurring) (emphasis added); United States v. Perkins, 116 U.S. 483, 485
(1886) (“The head of a department has no constitutional prerogative of appointment to offices
independently of the legislation of congress, and by such legislation he must be governed, not only
in making appointments, but in all that is incident thereto.”).
Importantly, the Framers considered, and initially maintained, a proposal by which the
President alone would have had the authority to “‘appoint officers in all cases not otherwise
14
The principles governing inferior versus principal officer are explored below. Infra pp. 67–80.
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provided for by this Constitution.’” Morrison, 487 U.S. at 675 (quoting 1 Records of the Federal
Convention of 1787, pp. 183, 185 (M. Farrand ed. 1966)). That proposal, however, was replaced
on September 15, 1787, when Gouverneur Morris moved to add the Excepting Clause to Article
II, which was adopted shortly thereafter. That left Congress with an important—though
circumscribed—role in vesting appointment authority for inferior officers. Id. The Framers’
rejection of unilateral executive-appointment authority traces its roots to the American colonial
experience with the English monarchy and to the Framers’ desire to limit executive
aggrandizement by requiring shared legislative and executive participation in the area of
appointments. See Edmond, 520 U.S. at 559–660; Freytag v. Comm’r, 501 U.S. 868, 884 (1991)
(examining historical sources on the subject of executive appointment-power abuses); Weiss, 510
U.S. at 184 (1994) (Souter, J., concurring) (discussing Framers’ awareness of the English
monarchy’s pre-revolutionary “manipulation of official appointments” and corresponding
recognition “that lodging the appointment power in the President alone would pose much the same
risk as lodging it exclusively in Congress: the risk of an incautious or corrupt nomination.”
(internal quotation marks and brackets omitted)); Trump v. United States, 144 S. Ct. 2312, 2349
(2024) (Thomas, J., concurring).
For these and other reasons, and as the Supreme Court has emphasized, the Appointments
Clause is “more than a matter of ‘etiquette or protocol’; it is among the significant structural
safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659 (quoting Buckley, 424 U.S. at
124 (emphasis added)); see Buckley, 424 U.S. at 132 (referring to the Appointments Clause as
setting forth “well-established constitutional restrictions stemming from the separation of
powers”). Indeed, it is rooted in the separation of powers fundamental to our system of government
and to the limitations built into that structure—all of which aim to prevent one branch from
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aggrandizing itself at the expense of another. Freytag, 501 U.S. at 878 (“The roots of the
separation-of-powers concept embedded in the Appointments Clause are structural and political.
Our separation-of-powers jurisprudence generally focuses on the danger of one branch’s
aggrandizing its power at the expense of another branch.”). The Appointments Clause also
preserves “the Constitution’s structural integrity by preventing the diffusion of the appointment
power” and thus enhancing democratic accountability. Id. at 878; id. at 884–86 (explaining that
the Appointments Clause protects democratic accountability by limiting “the distribution of the
appointment power” to “ensure that those who wielded it were accountable to political force and
the will of the people”); Ryder v. United States, 515 U.S. 177, 182 (1995).
Turning to the Excepting Clause more specifically, the Appointments Clause requires that
any Congressional decision to vest inferior-officer appointment power must be made by “Law”—
meaning statutory law, as all parties rightly agree [ECF Nos. 326 pp. 4–5; ECF No. 374 pp. 3–4].
Art. II, § 2 cl. 2. This “Law,” it bears noting, is a means by which Congress, in the words of the
Clause, can express its determination of whether it is “proper” to vest such appointment power in
one of the three circumscribed repositories. Id. (providing that “Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments”) (emphasis added). Congress thus retains a critical role
in determining which offices to create and whom to vest with inferior-officer appointment power.
And that role cannot be usurped or minimized, for doing so would “‘breach . . . the national
fundamental law’” of separation of powers and violate the principle that “[a]ll Legislative
power . . . shall be vested in . . . Congress.” Buckley, 424 U.S. at 122 (quoting Hampton & Co. v.
United States, 276 U.S. 394 (1928)); see Art. I, § 1 (“All legislative Powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate and House of
15
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Representatives.”).15 Put another way, there can be no expansion of the vesting power beyond
what is permitted in the Clause, and there can be no usurpation of the appointment power “by
indirection.” Buckley, 424 U.S. at 135–36; Myers v. United States, 272 U.S. 52, 164 (1926) (stating
that the Excepting Clause must be “strictly construed” and not “extended by implication”).
Pausing for a moment to distill the key principles so far, the following points stand out:
➢ The Appointments Clause reflects a carefully crafted system, rooted in the separation
of powers, by which the Executive and Legislative branches jointly participate in
appointments, exerting limitations upon each other, ensuring “public accountability,”
and “curb[ing] Executive abuses.” Edmond, 520 U.S. at 659.
➢ Congress retains a pivotal role in the appointment sphere, a role that cannot be usurped
or expanded. Freytag, 501 U.S. at 878.
➢ The Appointments Clause imposes a mandatory and exclusive procedure that must be
enforced according to its plain meaning, without exception. Buckley, 424 U.S. at 127,
132, 138–39 (rejecting effort to read Appointments Clause “contrary to its plain
language” and insisting upon strict compliance with the Clause); Myers, 272 U.S. at
164 (stating that the Appointments Clause must be “strictly construed” and not
“extended by implication”).
There is an additional background legal topic, and it concerns the degree of clarity with
which Congress must speak when expressing its intent to “vest” inferior-officer appointment
power. In other words, should courts apply a “clear statement rule” in this context? The Meese
amicus brief urges application of such a rule, arguing that requiring Congress to speak clearly
before determining that a statute permits deviation from the default appointment method is
warranted to preserve the structural separation-of-powers foundation and federalism features upon
which the Appointments Clause is built [ECF No. 364-1 pp. 19–20 (advocating for clear-statement
15
See also Lucia, 585 U.S. at 263–64 (Breyer, J., concurring) (“The use of the words ‘by Law’ to
describe the establishment and means of appointment of ‘Officers of the United States,’ together
with the fact that Article I of the Constitution vests the legislative power in Congress, suggests that
(other than the officers the Constitution specifically lists) Congress, not the Judicial Branch alone,
must play a major role in determining who is an ‘Office[r] of the United States.’ And Congress’
intent in this specific respect is often highly relevant.”).
16
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rule but defending position on the basis of ordinary statutory interpretation too)]. See Steven G.
Calabresi & Gary Lawson, Why Robert Mueller’s Appointment As Special Counsel Was Unlawful,
95 Notre Dame L. Rev. 87, 115–16 (2019). Trump appears to agree with these arguments,
although not explicitly in “clear statement” terms. And Special Counsel Smith seems to reject
imposition of any rule of construction or presumption [ECF No. 374 pp. 11–14; see ECF No. 647
pp. 87–88].
Without purporting to survey the Supreme Court’s “clear statement” jurisprudence, it is
enough to say that clear statement rules have been applied as substantive canons of construction
in various contexts to protect foundational constitutional guarantees, and usually to solve questions
of ambiguity in statutory interpretation. See Amy Coney Barrett, Substantive Canons and Faithful
Agency, 90 B.U. L. Rev. 109, 168 (2010); W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 735–
36 (2022) (Gorsuch, J., concurring).16 Clear statement rules do not require Congress to “use magic
words” or to “state its intent in any particular way,” but they do require Congress to speak clearly—
not merely “plausibly”—as discerned through traditional tools of statutory construction. MOAC
Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 298 (2023)); Spector v. Norwegian
16
These include attempted waivers of federal and state sovereign immunity, Fin. Oversight &
Mgmt. Bd. for Puerto Rico v. Centro de Periodismo Investigativo, Inc., 598 U.S. 339, 346 (2023),
Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024), Seminole Tribe of
Fla. v. Fla., 517 U.S. 44, 55 (1996); efforts to impose retroactive liability, Landgraf v. USI Film
Products, 511 U.S. 244, 265–66 (1994); attempts to grant agencies powers of “vast economic and
political significance,” Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 594 U.S. 758,
764 (2021); federal preemption of state law and federal efforts to regulate areas of traditional state
responsibility, Bond v. United States, 572 U.S. 844, 859 (2014), Nixon v. Missouri Municipal
League, 541 U.S. 125, 128 (2004), BFP v. Resolution Trust Corporation, 511 U.S. 531, 544
(1994); jurisdictional time bars affecting a court’s adjudicatory capacity, Wilkins v. United States,
598 U.S. 152, 159 (2023); Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S. 199, 206
(2022); and in cases that could be described as implicating the balance between the federal
branches, Kucana v. Holder, 558 U.S. 233, 237 (2010); I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001);
Davis v. Passman, 442 U.S. 228, 246–47.
17
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Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality opinion). When a clear statement rule does
apply, it can mean that a court chooses a lesser, though still tenable, interpretation of a statute as a
means to protect significant constitutional values. Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023)
(Barrett, J., concurring) (noting that “the hallmark of a true clear-statement rule” is where a court
“purports to depart from the best interpretation of the text”).
There are reasons to believe that application of a clear statement rule would apply to the
interpretation of statutes affecting the separation-of-powers balance animating the Appointments
Clause. Clear statement rules, as noted, generally apply “when a statute implicates historically or
constitutionally grounded norms that we would not expect Congress to unsettle lightly.” Jones v.
Hendrix, 599 U.S. 465, 492 (2023). And separation of powers norms ring strong here, where the
Special Counsel’s proffered statutory interpretations would displace the Senate from its ordinary
and longstanding role of confirming United States Attorneys and give to the Executive seemingly
unchecked power to create offices for outside prosecutors beyond the scheme designed in Title 28
of the United States Code. Additionally, there are indications in the language of the Appointments
Clause itself—specifically, its repeated reference to “Law” and to Congress’s determination of
what it “think[s] proper” for vesting purposes—that support requiring Congress to make its intent
known with discernable clarity. Article II, § 2, cl. 2. And then there are cases specifically in the
Appointments Clause context—principally Edmond and Weiss, discussed later—where the
Supreme Court has insisted upon textual clarity when faced with more ambiguous language.17
17
Edmond, 520 U.S. at 656–58 (recognizing clear statute granting appointment power and
declining to find appointment power in a separate statute lacking similarly clear language); Weiss,
510 U.S. at 757 (recognizing that Congress knows how to speak clearly in the appointment context
and then, on the basis of that Congressional know-how, declining to find appointment power in
statutes that lacked sufficient precision); Germaine, 99 U.S. at 509–10; Lucia, 585 U.S. at 257
(Breyer, J., concurring) (agreeing with majority that Commission did not properly appoint ALJs
18
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In any case, despite the appeal of applying a clear statement rule in this constitutional
setting, the Court finds it unnecessary to do so and would reach the same conclusion in this Order
regardless. Neither party presses hard for or against such a rule; the Supreme Court has not
expressly addressed whether a clear statement rule applies in the context of the Appointments
Clause; and in any case, the Court is satisfied that standard tools of statutory interpretation suffice
to discern whether the “Law” at issue, 28 U.S.C. § 515, 533, evinces a Congressional intent to
“vest the Appointment” of inferior Officers in the Attorney General as the Special Counsel
suggests. Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (finding resort to clear statement rule
unnecessary because the text and structure of the statute at issue showed that Congress did not
intend a substantial alteration in federal-state relations).
II. Statutory Structure of Justice Department and Attorney General’s Appointment
Authority
Before delving into the particular statutes cited in the Appointment Order, the Court
surveys the statutory structure of the Department of Justice, focusing on provisions that authorize
the Attorney General to appoint officers and/or employees, and also noting Congress’s displayed
legislative agility in prescribing appointment methods within that structure. Some of this material
features later in this Order, but the Court deems it helpful to provide initial structural context for
the discussion to follow.
Title 28 of the United States Code governs the Department of Justice, an executive
department of the United States, 28 U.S.C. § 501, and it contains various structural chapters. For
present purposes, the most important are Chapter 31 for the Attorney General, 28 U.S.C. § 501–
530D; Chapter 33 for the Federal Bureau of Investigation, 28 U.S.C. §§ 531–540d; and Chapter
and then observing that “no other statutory provision . . . would permit the Commission to delegate
the power to appoint its administrate law judges to its staff”).
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35 for United States Attorneys, 28 U.S.C. §§ 541–550. Title 28 also includes chapters for the
United States Marshals Service, 28 U.S.C. §§ 561–569; United States Trustees, 28 U.S.C. §§ 581–
589b; the now-expired Independent Counsel, 28 U.S.C. §§ 591–599; and the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, 28 U.S.C. § 599a–599b.
In Chapter 31, Congress requires the President to “appoint, with the advice and consent
of the Senate, an Attorney General of the United States” to serve as “head of the Department of
Justice.” Id. § 503. Congress then provides for the Presidential appointment of various officers
within the Department, all expressly “by and with the advice and consent of the Senate.” Id.
§§ 504, 504a, 505, 506. These include a Deputy Attorney General, id. § 504; an Associate
Attorney General, id. § 504a; a Solicitor General, id. § 505; and eleven Assistant Attorneys
General, id. § 506; see also § 507. In each of these statutes, Congress employs statutory language
fully tracking the default manner of appointing principal officers in the Appointments Clause. By
contrast, in a separate section of the same chapter, Congress permits the Attorney General to
appoint an Assistant Attorney General for Administration, a non-officer employee whom Congress
expressly places in the competitive service. Id. § 507.
Chapter 33 governs the Federal Bureau of Investigation (FBI). The FBI is headed by a
director appointed by the President, by and with the advice and consent of the Senate, for a term
of ten years, who is paid under the Federal Executive Salary Schedule. P. L. 90-351, Title VI, §
1101, 82 Stat. 236 (1968).18 Chapter 33 also authorizes the Attorney General, within his control
of the FBI, and as discussed later in connection with 28 U.S.C. § 533, to “appoint officials” to
“detect and prosecute crimes against the United States,” to “assist in the protection” of the
18
Prior to 1976, Congress authorized the Attorney General to appoint the FBI director, but then it
switched course to the default appointment method. 28 U.S.C. § 532; see Oct. 15, 1976, P. L. 94-
503, Title II, § 203, 90 Stat. 2427.
20
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President and the Attorney General, and to conduct investigations “regarding official matters under
the control” of the Departments of Justice and State. 28 U.S.C. § 533.
Chapter 35 relates to United States Attorneys, and it directs the President, in mandatory
terms, to “appoint, by and with the advice and consent of the Senate, a United States attorney for
each judicial district”—further specifying that such United States attorneys “shall be appointed for
a term of four years” and shall be “subject to removal by the President.” 28 U.S.C. § 541. It is
undisputed, and correct, that all United States Attorneys (93 currently) have been appointed by the
President and confirmed by the Senate throughout our Nation’s history, except that Congress has
permitted the Attorney General to appoint interim United States Attorneys with specific
restrictions. 28 U.S.C. § 546 (limiting duration of terms and prohibiting Attorney General from
appointing an interim United States Attorney “whose appointment by the President to that office
the Senate refused to give advice and consent”). It also bears noting, in the context of the Attorney
General’s appointment authority, that 28 U.S.C. § 543 (within Chapter 35 for United States
Attorneys) allows the Attorney General to “appoint attorneys to assist United States attorneys
when the public interest so requires, including the appointment of tribal prosecutors,” further
indicating that such special attorneys are “subject to removal by the Attorney General.” 28 U.S.C.
§ 543(a)–(b). As discussed further infra, Special Counsel Smith does not rely on 28 U.S.C. § 543
to provide authority for his appointment, and he disavows any notion that he is “assisting” a United
States attorney.19
19
Chapter 37 addresses the United States Marshals Service and provides for a Director of the
Service who is “appointed by the President, by and with the advice and consent of the Senate,” 28
U.S.C. § 561, along with individual United States marshals in each judicial district, all of whom
also are appointed by the President and confirmed by the Senate. Id. Chapter 39 is designated for
United States Trustees, who are appointed by the Attorney General for various specified judicial
districts, and who are “subject to removal by the Attorney General.” 28 U.S.C. § 581. Chapter
40A establishes “the Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF],” which is
21
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There is one last piece in the United States Code in which the Attorney General is given
appointment authority, and it is codified at 18 U.S.C. § 4041. That section, located within the
Prisons and Prisoner Part of Title 18, and passed in 1948, authorizes the Attorney General to
appoint the director of the Bureau of Prisons (BOP) who serves “directly under the Attorney
General,” and then also permits the Attorney General to “appoint such additional officers and
employees as he deems necessary.” 18 U.S.C. § 4041.
There are no other provisions in the United States Code of which the Court is aware that
permit the Attorney General to appoint “officers” or employees.
III. Analysis of Statutes Cited in Appointment Order
The Court now proceeds to evaluate the four statutes cited by the Special Counsel as
purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court
concludes that none vests the Attorney General with authority to appoint a Special Counsel like
Smith, who does not assist a United States Attorney but who replaces the role of United States
Attorney within his jurisdiction.
In considering each of these four provisions, the Court “begins where all such inquiries
begin: with the language of the statute itself.” United States v. Ron Pair Enterprises, Inc., 489
U.S. 235, 241 (1989). This requires the Court to interpret statutory language according to its
ordinary meaning, and to read it within the specific context in which it appears and within the
broader context of the statute as a whole. See, e.g., Sw. Airlines Co. v. Saxon, 596 U.S. 450, 455
(2022); King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that a
statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on
headed by a Director who “shall be appointed by the President, by and with the advice and consent
of the Senate.” 28 U.S.C. § 599A(a)(1)–(2).
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context” (internal citation omitted)); Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1192
(11th Cir. 2019) (“The whole-text canon refers to the principle that a judicial interpreter should
consider the entire text, in view of its structure and of the physical and logical relation of its many
parts, when interpreting any particular part of the text.” (internal quotation marks and brackets
omitted)).
A. 28 U.S.C. § 509
The first statute cited in the Appointment Order is 28 U.S.C. § 509, a generic provision
vesting DOJ’s functions in the Attorney General. It is titled “Functions of the Attorney General,”
and it provides, in full, as follows:
All functions of other officers of the Department of Justice and all functions of
agencies and employees of the Department of Justice are vested in the Attorney
General except the functions—
(1) vested by subchapter II of chapter 5 of title 5 in administrative law
judges employed by the Department of Justice;
(2) of the Federal Prison Industries, Inc.; and
(3) of the Board of Directors and officers of the Federal Prison Industries,
Inc.
28 U.S.C. § 509.
Special Counsel Smith neither argues that Section 509 establishes an office, nor that it
grants officer-appointing power to the Attorney General. Indeed, it does neither of these. It is a
general statute simply declaring that the Attorney General is imbued with all functions of the
Department and its agencies except in the limited instances of administrative law judges and
private federal prisons. No more discussion about Section 509 is necessary.
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B. 28 U.S.C. § 510
The second statute cited in the Appointment Order is 28 U.S.C. § 510, a general provision
allowing the Attorney General to delegate his functions to officers, employees, and agencies of
DOJ. The full text of Section 510, titled “Delegation of authority,” provides as follows:
The Attorney General may from time to time make such provisions as he considers
appropriate authorizing the performance by any other officer, employee, or agency
of the Department of Justice of any function of the Attorney General.
28 U.S.C. § 510 (emphasis added).
Special Counsel Smith does not classify or rely on Section 510 as an officer-appointing or
office-creating statute, nor is it. Using similarly general phrasing as Section 509, Section 510
merely gives the Attorney General flexibility to authorize existing DOJ officers, employees, or
agencies to perform the functions of the Attorney General, consistent with the nature of those
functions. See Calabresi & Lawson, supra at 107 (noting the authority granted in Section 510 to
delegate “delegable functions” (emphasis in original)). Special Counsel Smith, as all agree, and
as required by the extant Special Counsel Regulations, was “selected from outside the United
States Government.” 28 C.F.R. § 600.3(a). No more discussion about Section 510 is necessary.
C. 28 U.S.C. § 515
The third statute cited in the Appointment Order is 28 U.S.C. § 515, titled “Authority for
legal proceedings; commission, oath, and salary for special attorneys.” 28 U.S.C. § 515. It
contains two subsections, quoted fully below:
(a) The Attorney General or any other officer of the Department of Justice, or any
attorney specially appointed by the Attorney General under law, may, when
specifically directed by the Attorney General, conduct any kind of legal
proceeding, civil or criminal, including grand jury proceedings and proceedings
before committing magistrate judges, which United States attorneys are
authorized by law to conduct, whether or not he is a resident of the district in
which the proceeding is brought.
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(b) Each attorney specially retained under authority of the Department of Justice
shall be commissioned as special assistant to the Attorney General or special
attorney, and shall take the oath required by law. Foreign counsel employed in
special cases are not required to take the oath. The Attorney General shall fix
the annual salary of a special assistant or special attorney.
28 U.S.C. § 515. Although Special Counsel Smith relies primarily on Section 515(b), the Court
analyzes each subsection in turn.
i. Section 515(a)
Section 515(a) does not authorize the creation of any office and does not authorize the
Attorney General to appoint anyone. Nor does the Special Counsel meaningfully argue that it
does. As its text indicates, Section 515(a) simply declares that the Attorney General, any “officer
of the Department of Justice,” or any “attorney specially appointed by the Attorney General under
law”—referring to previously existing special attorneys appointed under statutory law—are
authorized to conduct legal proceedings “which United States attorneys are authorized by law to
conduct,” regardless of whether the litigating officer or special attorney resides in the district in
which the proceeding is brought. 28 U.S.C. § 515(a).20 This is a provision conferring territorial
flexibility to the Attorney General; it permits the Attorney General to use DOJ officers and
previously appointed special attorneys to litigate on behalf of the United States, regardless of
residency. No more can be inferred from the text of Section 515(a), and again, Special Counsel
Smith does not meaningfully rely on it as a source of officer-appointing power.
20
To the extent Special Counsel Smith insinuates that “under law” in Section 515(a) does not
require what it plainly says—that special attorneys must be appointed by the Attorney General
under statutory law [ECF No. 374 p. 12]—no basis is provided for that atextual suggestion.
Trump, 2024 WL 3237603, at *27 (Thomas, J., concurring). The phrases “under law” in Section
515(a) and “under authority of the Department of Justice” in Section 515(b) plainly refer to
statutory law outside of Section 515. Any other reading would render these phrases surplusage.
See Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 621 (D.D.C. 2018) (citing TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001)).
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ii. Section 515(b)
The Court thus shifts to Section 515(b), where the Special Counsel devotes more attention.
According to the Special Counsel, Section 515(b) “gives the Attorney General authority to appoint
‘special attorneys’ like the Special Counsel” [ECF No. 374 p. 11]. This is so, he contends, because
(1) “‘[s]pecially retained under authority of the Department of Justice’ necessarily means specially
retained by the Attorney General, who is head of the Department of Justice and vested with all of
its functions and powers” [ECF No. 374 p. 11 (emphasis in original, quoting 28 U.S.C. § 515(b))];
(2) the terms “commissioned” and “specially retained” in the statute effectively mean “appoint”
[ECF No. 374 pp. 11–12; see ECF No. 647 pp. 62–63]; and (3) the history of Section 515(b)
“confirms that it provides appointment power” [ECF No. 374 p. 14; see, e.g., ECF No. 647 p. 56].
These arguments cannot be squared with the statutory text, context, or history.
a. Ordinary Meaning
Section 515(b), read plainly, is a logistics-oriented statute that gives technical and
procedural content to the position of already-“retained” “special attorneys” or “special assistants”
within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be
“commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on
“commissioned” below). Section 515(b) then provides that those already-retained special
attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the
Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give
the Attorney General independent power to appoint officers like Special Counsel Smith—or
anyone else, for that matter.
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This understanding of Section 515(b) as a descriptive statute about already-retained
attorneys—rather than as a source of new appointment power—is confirmed by additional textual
features within the provision itself.
First, as the district court in Concord Mgmt. & Consulting LLC, observed in evaluating a
similar challenge, and as alluded to above, the statute uses the past participle tense of the word
retain. 317 F. Supp. 3d at 621. Congress’s use of a verb tense can be significant in evaluating
statutes. See, e.g., Carr v. United States, 560 U.S. 438, 448 (2010) (describing that “varied” verb
tenses communicate different meanings). And that is so here, where the text of Section 515(b)
plainly does not announce or give anyone the active power to “retain” anyone afresh but simply
notes specific requirements or features about attorneys already “specially retained” in the past
“under the authority of the Department of Justice.” Concord Mgmt. & Consulting LLC, 317 F.
Supp. 3d at 621 (observing that regardless of whether Section 515(b) refers to past or present
conditions, it “does not appear to convey the power to bring those conditions about”).
Second, absent from Section 515(b) is any reference to the verb “appoint,” an active verb
used in the Appointments Clause itself. Art. II, § 2, cl. 2. To justify that void, the Special Counsel
says the Court should read the terms “specially retained” and “commissioned” in Section 515(b)
as the functional equivalent of “appoint.” The Court declines to engage in such linguistic
distortion, nor is it aware of any vesting statute that uses those verbs as replacements for the verb
“appoint.” For starters, the term “appoint,” on the one hand, and the terms “retain” or
“commission,” on the other, are not invariably interchangeable. See In re Walter Energy, Inc., 911
F.3d 1211, 1143 (11th Cir. 2018) (“When a statute does not define a term, we often look to
dictionary definitions for guidance.”). Definitions of the verb “appoint” describe the filling of a
more enduring—and often formal or official role or office. Black’s Law Dictionary (4th ed. 1951)
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(defining “appoint” as “[t]o designate, ordain, prescribe, nominate,” and explaining that “‘appoint’
is used where exclusive power and authority is given to one person, officer, or body to name person
to hold certain offices”); see Merriam-Webster’s Collegiate Dictionary (11th ed. 2003) (“to name
officially”); Oxford American Dictionary (3d ed. 2010) (“assign a job or role (to someone)”). This
differs from definitions of “retain” and “commission,” which often connote a narrower, mission-
or task-specific hiring or charge. Retain, Webster’s Third New International Dictionary (1961)
(“to keep in pay or in one’s services” or “to employ (a lawyer) by paying a preliminary fee that
secures a prior claim upon services in case of need”); commission, id. (“to endow with effective
right or power” or “to appoint to a certain task, mission, function, or duty”); retain, Black’s Law
Dictionary (4th ed. 1951) (“[t]o continue to hold, have, use, recognize, etc., and to keep,” and “[t]o
engage the services of an attorney or counsellor to manage a cause”).21
In any case, even accepting some degree of overlap among some of these definitions, it
remains the case that the Supreme Court has been apprehensive to accept other statutory terms as
stand-ins for the word “appoint” in the Appointments Clause context, recognizing that Congress
consistently uses the word “appoint” rather than “terms not found within the Appointments
Clause.” See Edmond, 520 U.S. at 657–58 (holding that statute’s use of “assign” did not vest
21
Many definitions of the transitive verb “commission” merely invoke the noun form of the word,
“commission.” E.g., Webster’s Seventh New Collegiate Dictionary (1969) (defining the verb
“commission” as “to furnish with a commission”); Webster’s Third New International Dictionary
(1961) (similar). Notably, though, definitions of the noun “commission” convey the same task-
specific—as opposed to role-oriented—meaning as the verb. See Webster’s Seventh New
Collegiate Dictionary (1969) (defining noun “commission” as “a formal written warrant granting
the power to perform various acts or duties” or “an authorization or command to act in a prescribed
manner or to perform prescribed acts”); Webster’s Third New International Dictionary (1961)
(defining noun “commission” as “a formal written warrant or authority granting certain powers or
privileges and authorizing or commanding the performance of certain acts or duties,” referencing
“an order to perform a particular task or carry out a work”).
28
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officer-appointing authority); Weiss, 510 U.S. at 171–72.22 Moreover—for the same verb-tense
reasons as stated above—whatever possible linguistic overlap might exist between the present-
tense formulations of the verbs “appoint,” “retain,” or “commission,” Section 515(b) does not use
them in that format, using instead the past participle adjective application.
All of this yields the following in terms of ordinary meaning for the terms “specially
retained” and “commissioned as . . . special attorney” in Section 515(b): (1) “retained” essentially
means employed or hired; (2) “commissioned” means designated, classified, or tasked in a role;
and (3) together those phrases transmit the fairly mundane, descriptive point that already-hired
attorneys within the Department shall be classified as special assistants or special attorneys and
shall take an oath and have a fixed salary. That is all that fairly can be extracted from Section
515(b). There is no granting of appointment power in this language.
Nor, as the Special Counsel suggests, does the historical pedigree of Presidential
“commissions” dating back to Marbury v. Madison, 5 U.S. 137 (1803), transform the adjective
phrase “shall be commissioned . . . as special attorney” into an implicit grant of officer-
appointment power for the Attorney General [ECF No. 374 p. 11]. True, as Marbury informs, the
“last act to be done by the President” in making an appointment for a constitutional officer is “the
signature of the commission,” thus demonstrating his action “on the advice and consent of the
senate to his own nomination.” Id. at 157 (emphasis added); see Art II, § 2, cl. 3 (Recess
Appointment Clause). But nothing in the language of Section 515(b) speaks in terms of a
traditional Presidential appointment with Senate confirmation followed by the signing of an
22
This is not to suggest, of course, that an appointment statute has to use “magic words” lest it fail
the “appointment test.” See Lucia, 585 U.S. at 264 (Breyer, J., concurring). But, as noted, the
Supreme Court has demonstrated a preference for language that tracks the constitutional text, see
Edmond, 520 U.S. at 657–58; Weiss, 510 U.S. at 171–72; Germaine, 99 U.S. at 510, and so has
Congress, see supra pp. 47–50.
29
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officer-level commission, as was the case in Marbury. Far from it, for all of the reasons already
stated. Simply put, whatever historical relevance there is to take from the fact that Presidents—
not Attorneys General—sign commissions for constitutional officers, it does nothing to alter the
ordinary meaning of Section 515(b).
b. Statutory Context
The broader statutory context of Title 28—and the use of the term “special attorney” within
that context, in particular, in Section 543—also refutes the Special Counsel’s untenable reading of
Section 515(b). It is an axiom of statutory interpretation that “‘identical words used in different
parts of the same act are intended to have the same meaning.’” See, e.g., Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995) (citing Dep’t of Revenue of Oregon v. ACF Indus., Inc., 510 U.S. 332,
342 (1994)); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 231 (2020) (consistent usage canon); Deal
v. United States, 508 U.S. 129, 132 (1993) (noting that it is a “fundamental principle of statutory
construction (and, indeed, of language itself) that the meaning of a word cannot be determined in
isolation, but must be drawn from the context in which it is used.”). It is also well settled that
statutory provisions should be interpreted harmoniously, not in contradictory fashion, after
considering the whole statutory scheme and context holistically. United Sav. Ass’n of Tex. v.
Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); Panama Ref. Co. v. Ryan, 293
U.S. 388, 439 (1935) (Cardozo, J., dissenting). These guideposts matter much here.
Section 515 was enacted in 1966 as part of a wide-scale government reorganization act
across the Executive branch. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378. See infra
pp. 34–36 (discussing predecessor statutory history of Section 515). As relevant to Title 28, that
legislation contained two other explicit references to “special attorneys” in the Department, both
of which remain in force today: Section 543 and 519. Id. §§ 515, 519, 543, 80 Stat. 378, 611–618.
30
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Section 543—titled “Special attorneys”—gives the Attorney General authority to “appoint
attorneys to assist United States attorneys when the public interest so requires.” 28 U.S.C. § 543.
And then Section 519 directs the Attorney General to supervise all litigation involving the United
States or its officers by specifically providing that he “shall direct all United States attorneys,
assistant United States attorneys, and special attorneys appointed under section 543 of this title in
the discharge of their duties.” 28 U.S.C. § 519 (emphasis added).
The term “special attorney” thus has a known meaning in Title 28 that coincides
harmoniously with the broader statutory context. That meaning, per Section 543, consists of
attorneys appointed by the Attorney General to assist United States Attorneys—a role Special
Counsel Smith expressly disclaims [ECF No. 647 pp. 57–58]. This leaves Special Counsel Smith
to offer a highly strained reading of “special attorney” in Section 515(b), which is that the term
used in that provision somehow denotes a different category of “special attorney” than what
Congress specifically created in Section 543 and then referenced again in Section 519—all within
the same public law [see ECF No. 647 pp. 57–58]. Neither the statutory text of Section 515 nor
its statutory context gives any reason to believe such discordancy matches congressional intent.
United States v. Castleman, 134 S. Ct. 1405, 1417 (2014) (“[T]he presumption of consistent usage
[is] the rule of thumb that a term generally means the same thing each time it is used [and] most
commonly applie[s] to terms appearing in the same enactment.”) (Scalia, J., concurring) (emphasis
added). Nor is there any basis to believe that Congress, when it expressly designated the categories
of attorneys within the Department whose duties the Attorney General must direct somehow
omitted a separate fourth category of United States Attorney-like special counsels nowhere created
31
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in the 1966 Act. If Congress intended “special attorney” to mean something different in Section
515(b) than in Section 543, it could have used different language, but it did not.23
Zooming out beyond Sections 543 and 519 as contextual counterpoints, Congress
repeatedly has demonstrated its ability to imbue the Attorney General with appointment power
over officers and employees—yet Section 515 looks nothing like those examples. In Section
546(a), for instance, codified in the same enactment as Section 515, Congress authorized the
Attorney General to “appoint an [interim] United States attorney for the district in which the office
of United States attorney is vacant.” Id. § 546(a). Likewise, in 18 U.S.C. § 4041, Congress
permitted the Attorney General to “appoint such additional officers and employees as he deems
necessary [within BOP].” 18 U.S.C. § 4041. And in Section 542(a), Congress authorized the
Attorney General to “appoint one or more assistant United States attorneys.” 28 U.S.C. § 542(a).
Even more, Congress has shown its facility in vesting appointment power in Heads of Departments
across the Executive Branch, ranging from the Secretary of Education, to Agriculture, to
Transportation, and to Health and Human Services. See 7 U.S.C. § 610(a) (“The Secretary of
Agriculture may appoint such officers and employees . . . .”); 18 U.S.C. § 4041 (“The Attorney
General may appoint such additional officers and employees as he deems necessary.”); 49 U.S.C.
§ 323(a) (“The Secretary of Transportation may appoint and fix the pay of officers and employees
of the Department of Transportation and may prescribe their duties and powers.”); 20 U.S.C.
§ 3461(a) (“The Secretary is authorized to appoint and fix the compensation of such officers and
employees, including attorneys, as may be necessary to carry out the functions of the Secretary
and the Department.”); 42 U.S.C. § 913 (The Secretary [of Health and Human Services] is
23
It is true that Section 519 contains a cross-reference to Section 543 whereas Section 515(b) does
not, but that technical omission in a numerical cross-reference simply cannot overcome the
presumption of consistent usage of “special attorney” in the same enactment.
32
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authorized to appoint and fix the compensation of such officers and employees. . . .”). None of
those examples bears any resemblance to Section 515, and notably, all of the examples use the
present tense, unlike Section 515. See Carr, 560 U.S. at 449–451.
The Special Counsel has no response to this clear pattern of congressional appointment
language, presumably on the general theory that Congress can avail itself of different legislative
phrasing as it pleases [ECF No. 374]. But statutory context cannot be discounted, nor can clear
statutory patterns be ignored. Simply put, the Special Counsel’s strained inferences about Section
515 do not make sense when viewed against the backdrop of Congress’s clear and consistent ability
to legislate in the appointments arena.
c. History: Section 515’s predecessor statutes, and the historical use
of special-counsel-like figures.
Finding little support in the plain language of Section 515(b), the Special Counsel makes a
series of unconvincing historical arguments that fail upon close scrutiny [ECF No. 374 p. 14 (“The
history of Section 515 removes any question that it authorizes the Attorney General to appoint
special attorneys such as the Special Counsel.”)]. The relevant history, according to Special
Counsel Smith, shows that Congress tacitly authorized—or silently acquiesced to—the use of
Section 515 (or its predecessor statutes) to appoint “special attorneys” like himself [ECF No. 374
pp. 14–16; see ECF No. 647 pp. 58–62]. Upon review of the murky historical record, the Court
determines that, whatever themes can be drawn from that background, they cannot supplant the
plain language of the statute itself, which clearly does not vest the Attorney General with such
authority. See In re BFW Liquidation, LLC, 899 F.3d 1178, 1189–90 (11th Cir. 2018).
The Special Counsel’s historical argument breaks into two parts: (1) Section 515’s
statutory history going back to 1870, and (2) the historical use of “special attorney”-like figures
throughout American history.
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i. Statutory History
The currently codified version of Section 515(b) can be traced back to the establishment of
the Department of Justice in 1870. See An Act to Establish the Department of Justice, ch. 150, 16
Stat. 162, 164–65 (1870) (hereinafter, the “DOJ Act”). The relevant portion of that Act is provided
below:
And be it further enacted, That it shall not be lawful for the Secretary of either of
the executive Departments to employ attorneys or counsel at the expense of the
United States; but such Departments, when in need of counsel or advice, shall call
upon the Department of Justice, the officers of which shall attend to the same; and
no counsel or attorney fees shall hereafter be allowed to any person or persons,
besides the respective district attorneys and assistant district attorneys, for services
in such capacity to the United States, or any branch or department of the
government thereof, unless hereafter authorized by law, and then only on the
certificate of the Attorney-General that such services were actually rendered, and
that the same could not be performed by the Attorney-General, or solicitor-general,
or the officers of the department of justice, or by the district attorneys. And every
attorney and counselor who shall be specially retained, under the authority of the
Department of Justice, to assist in the trial of any case in which the government is
interested, shall receive a commission from the head of said Department, as a
special assistant to the Attorney General, or to some one of the district attorneys,
as the nature of the appointment may require, and shall take the oath required by
law to be taken by the district attorneys, and shall be subject to all the liabilities
imposed upon such officers by law.
Id. at § 17. The latter portion of this section, which largely mirrors the text of the current statute,
provides no new insights as to the meaning of Section 515 and contains no indication that any of
the “specially retained” attorneys “authorized by law” to be hired do anything other than assist the
Attorney General in a non-officer capacity. Put another way, nothing in this language shows
Congress’s intent that “special assistants”—personnel authorized to “assist in the trial of any case
in which the government is interested”—would function with the power of a United States
Attorney.
34
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Subsequent enactments do not dictate otherwise. In 1930, Congress added the term
“special attorney.” Pub. L. No. 71-133, ch. 174, 46 Stat. 170.24 And in 1948, Congress made
some non-substantive changes to simplify the provision’s wording. Pub. L. No. 80-773, ch. 646,
§ 62 Stat. 869, 985–86. Again, and mindful that “changes in statutory language generally indicate
an intent to change the meaning of the statute,” Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th
Cir. 2010) (citation omitted), these revisions do not indicate that Congress (1) intended the DOJ
Act to authorize the appointment of private citizens; or (2) envisioned “special attorneys” as
possessing the power or autonomy of contemporary special counsels. Put simply, these
amendments offer nothing new from a textual-analysis standpoint.25
Nevertheless, as Special Counsel Smith sees it, these amendments—and Congress’s failure
to object to the use of special attorneys in the intervening years—suggest that Congress “ratified”
the Executive branch’s use of Section 515 for this purpose [ECF No. 647 pp. 58–62; see ECF No.
374 pp. 15–16 (“Despite widespread use of special counsels before these enactments . . . Congress
never questioned the Attorney General’s power of appointment.”)]. For the reasons that follow,
24
Although resort to legislative history is unnecessary and generally ill advised, the Court notes
that a House Report accompanying the 1930 amendment suggests that the addition of the phrase
“special attorney”—to accompany the already-present “special assistant”—did not effectuate a
substantive change to the DOJ Act: “The bill does not provide authority for any new appointments
but merely permits commissions to issue to attorneys as special attorneys in those cases where the
Attorney General feels that it is undesirable to use the title of ‘special assistant to the Attorney
General.’” H.R. Rep. No. 71-229 (1930). As far as the Court can tell, the terms “special assistant”
and “special attorney” in Section 515 have the same functional meaning except, potentially, in
who they assist—special assistants assisting the Attorney General; special attorneys assisting
United States Attorneys, see 28 U.S.C. § 543—but any technical daylight between those non-
officer employees has not been explored in caselaw.
25
Special Counsel Smith also describes the statutory history leading to Section 515(a) [ECF No.
374 p. 15]. Even if the Court were to accept the inferences drawn by Special Counsel Smith on
this point, Section 515(a)’s predecessor statutes—much like the now-codified provision—have
nothing to do with appointment power.
35
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the Court declines to interpret Congress’s silence on the intermittent, historical use of “special
attorneys” as tantamount to acquiescence here. “Legislative silence is a poor beacon to follow in
discerning the proper statutory route.” Zuber v. Allen, 396 U.S. 168, 185 (1969); id. at n.21
(explaining that “[t]he verdict of quiescent years cannot be invoked to baptize a statutory gloss
that is otherwise impermissible”); cf. Rapanos v. United States, 547 U.S. 715, 749–52 (2006)
(discussing the limited utility of “congressional acquiescence”); Regions Bank, 936 F.3d at 1196
(same); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985) (“[W]e are
chary of attributing significance to Congress’ failure to act . . . .”); Bob Jones Univ. v. United
States, 461 U.S. 574, 600 (1983) (“Nonaction by Congress is not often a useful guide . . . .”).
ii. Historical Practice
Special Counsel Smith argues that the use of special attorneys throughout American history
“amply confirms the Attorney General’s authority to appoint the Special Counsel here” [ECF No.
374 p. 16]. The Court disagrees. At most, the history reflects an ad hoc, inconsistent practice of
naming prosecutors from both inside and outside of government (typically in response to national
scandal) who possessed wildly variant degrees of power and autonomy. The lack of consistency
makes it near impossible to draw any meaningful conclusions about Congress’s approval of
modern special counsels like Special Counsel Smith—much less its acquiescence to Section 515
as a vehicle for such appointments.
Special Counsel Smith’s broad historical argument proceeds from two mistaken premises.
The first is rooted in the notion that “past Attorneys General have ‘made extensive use of special
attorneys’” by “drawing on the authority to retain counsel originally conferred in 1870” [ECF No.
374 p. 16 (quoting In re Persico, 522 F.2d 41, 45–46 (2d Cir. 1975))]. This incorrectly assumes
that “special attorneys” have consistently been appointed pursuant to Section 515 or one of its
36
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predecessor statutes [ECF No. 374 p. 16]. But a review of historical appointments shows a far
spottier picture. Some “special attorneys” were appointed by regulation. E.g., 38 Fed. Reg.
30,739, amended by 38 Fed. Reg. 32,805 (appointing Leon Jaworski to investigate and prosecute
the Watergate scandal).26 Some were appointed by statute. E.g., ch. 16, 43 Stat. 6 (1924) (directing
President Coolidge to appoint, with Senate confirmation, special prosecutors to investigate Teapot
Dome scandal). Some were appointed by both. See In re Sealed Case, 829 F.2d 50, 51–54 (D.C.
Cir. 1987) (explaining how Independent Counsel Lawrence Walsh was appointed under the
Independent Counsel Act and by separate regulation). And some—as far as this Court can tell—
were appointed without any formal statutory or regulatory authority at all. See Terry Eastland,
Ethics, Politics, and the Independent Counsel 8–9 (1989).27 Thus, it can hardly be said that
Attorneys General have drawn consistently on Section 515 or its predecessor statutes as a source
of appointment authority [see ECF No. 374 p. 16].
Nor is it true that “past Attorneys General” were solely and exclusively responsible for the
act of appointment [see ECF No. 374 p. 16]. Notable nineteenth- and twentieth-century special
prosecutors were appointed directly by U.S. Presidents. Logan, supra at 10, 13, 28–29 (describing
appointments by President Grant (with Senate confirmation) and President Truman).28 Moreover,
26
Appointing regulations themselves have cited an inconsistent patchwork of statutory authority.
Crucially here, many such regulations did not cite Section 515 (or Section 533). The regulation
appointing Special Prosecutor Jaworksi serves as an example. 38 Fed. Reg. 30,739, amended by
38 Fed. Reg. 32,805 (citing 28 U.S.C. §§ 509, 510 and 5 U.S.C. § 301). So does the regulation
appointing Special Counsel Ken Starr to investigate the Whitewater scandal, which (interestingly)
cited Section 543. 28 C.F.R. § 603.1 (citing 28 U.S.C. §§ 509, 510, 543 and 5 U.S.C. § 301).
27
See also David A. Logan, Historical Uses of a Special Prosecutor: The Administrations of
Presidents Grant, Coolidge and Truman 7, 28–29 (Congressional Research Service Nov. 23,
1973); Andrew Coan, Prosecuting the President 23–40 (2019); [ECF No. 647 pp. 110–11].
28
These appointments do not appear to have been made by formal order or regulation.
37
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the practices and protocol for removing such officers varied considerably. Some were
removable—and were, in fact, removed—at will by Presidents, see id. at 12–13, 33–34 (discussing
President Grant and Truman firing special prosecutors), whereas others were largely insulated
from removal by certain statutory or regulatory features, e.g., 38 Fed. Reg. 30,739, amended by 38
Fed. Reg. 32,805 (dramatically limiting President Nixon’s power to remove Special Prosecutor
Jaworski, following Nixon’s firing of former Special Prosecutor Archibald Cox).
The second mistaken premise is that Special Counsel Smith is just another in a long line of
“special attorneys” of similar ilk. In fact, very few historic special attorneys resemble Special
Counsel Smith. For starters, the title “special counsel” is of fairly recent vintage. Special-attorney-
like figures bore many titles throughout the decades. Special attorneys. Special assistants. Special
prosecutors. Independent counsels. And most recently, special counsels. In the Court’s view, this
is not an insignificant semantic detail. See Kavanaugh, supra at 2136 n.5. As discussed below, it
is emblematic of the variant backgrounds, roles, and authorities possessed by these historical
figures.
Moreover, the appointment of private citizens like Mr. Smith—as opposed to
already-retained federal employees—appears much closer to the exception than the rule. The
historic cases cited in Special Counsel Smith’s Opposition demonstrate as much [ECF No. 374
pp. 14–15]; compare United States v. Crosthwaite, 168 U.S. 375, 376 (1897) (appointing “special
assistant” from within DOJ to aid in prosecution), and United States v. Winston, 170 U.S. 522,
524–25 (1898) (designating federal district attorney to serve as “special counsel” in another
district), and In re Persico, 522 F.2d at 45–46 (appointing internal DOJ attorney to act as “Special
Attorney” on organized crime “strike force”), with United States v. Rosenthal, 121 F. 862
(S.D.N.Y. 1903) (seeming to appoint private citizen as “special assistant to the Attorney General”).
38
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And while the past half century has shown an uptick in private-citizen special counsels, that
practice is far from uniform. Compare Order No. 3915-2017 (appointing private citizen Robert
Mueller as Special Counsel), with Letter from Acting Attorney General James B. Comey to Patrick
J. Fitzgerald (Dec. 30, 2003) (appointing U.S. Attorney Patrick Fitzgerald as Special Counsel),
and Order No. 4878-2020 (appointing U.S. Attorney John Durham as Special Counsel), and
Order No. 5730-2023 (appointing U.S. Attorney David Weiss as Special Counsel).
Nor is it true that special attorneys have operated with the same degree of power and
autonomy as Special Counsel Smith. Consider again the historic cases cited in the Opposition
[ECF No. 374 pp. 14–15]: those cases featured special attorneys with varying degrees of authority,
most of whom were subject to greater oversight than Special Counsel Smith. See Crosthwaite,
168 U.S. at 376 (describing “special assistant” whose authority was largely limited to aiding the
U.S. Attorney, to whom he reported); In re Persico, 522 F.2d at 51–52 (describing special attorney
as existing in a “tight bureaucratic hierarchy controlled by the Attorney General” and “under
virtually constant specific direction and control”).29 30 Additionally, on several occasions,
Congress has helped define and indeed controlled the degree and scope of special counsels’
29
The special attorney in In re Persico operated under the supervision of at least three separate
higher-ranking members. 522 F.2d at 45. He functioned in an assisting capacity and lacked the
independent authority to take various actions without approval. See id. at 45–46. “The situation
here is quite unlike that we would face were the Attorney General to grant such a commission to
a single person outside the bureaucratic structure who might take action and incur fiscal and other
liabilities for the government without limit.” Id. at 52.
30
The “Special Assistant to the Attorney General” featured in Rosenthal bears closer resemblance
to Special Counsel Smith. He “appeared before [a] grand jury, and chiefly conducted the
proceedings that resulted in the indictments” of several individuals involved in fraudulent
importations of Japanese silks. Rosenthal, 121 F. at 865. In that case, however, the court
determined that the special assistant was not an “officer” under the relevant statutes, nor did those
statutes authorize him to appear before grand juries. Id. at 866–69. See also supra p. 35 n.25.
39
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authority. See Logan, supra pp. 30–31 (describing Congress’s denial of President Truman’s
request that special prosecutor be given subpoena and immunity-granting power); id. p. 22
(detailing Senate’s role in “direct[ing] the President to appoint special counsel” to investigate
Teapot Dome).
And perhaps most importantly, Congress—historically, and in the present moment—has
shown that it knows how to create offices for special counsels. In 1924, Congress did so in
response to the Teapot Dome scandal. Ch. 16, 43 Stat. 6 (“[T]he President is further authorized
and directed to appoint . . . special counsel who shall have charge and control of the prosecution
of such litigation.”). In 1978, Congress passed the much-discussed (and now-defunct) Independent
Counsel Act. 28 U.S.C. §§ 591 et seq. In fact, there are statutes on the books right now that create
offices for “special counsels” with unique jurisdictions. 5 U.S.C. §§ 1211–19 (establishing an
“Office of Special Counsel” to protect federal employees from “prohibited personnel practices”);
8 U.S.C. § 1324b(c)(1) (establishing a “Special Counsel for Immigration-Related Unfair
Employment Practices” to investigate and prosecute immigration-related employment offenses).31
All this stands to demonstrate that Congress knows how to legislate in this space. And when it
does, it does so expressly and unequivocally.
***
In the end, there does appear to be a “tradition” of appointing special-attorney-like figures
in moments of political scandal throughout the country’s history. But very few, if any, of these
31
The Court expresses no opinion on whether these “special counsels” are truly constitutional
officers. Notably, however, in both cases, Congress required these special counsels to be
nominated by the President and confirmed by the Senate. 5 U.S.C. § 1211(b) (“The Special
Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for
a term of 5 years.”); 8 U.S.C. § 1324b(c)(1) (“The President shall appoint, by and with the advice
and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment
Practices . . . within the Department of Justice to serve for a term of four years.”).
40
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figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen
exercising the full power of a United States Attorney, and with very little oversight or supervision.
When scrutinized, this spotty historical backdrop does not “amply confirm[] the Attorney
General’s authority to appoint the Special Counsel here” [ECF No. 374 p. 16]. Whatever marginal
support the history may lend to Special Counsel Smith’s position, the inconsistent patchwork of
practices detailed above does not show that Congress ratified—or acquiesced to—the Executive’s
use of Section 515 (or its predecessor statutes) to appoint special counsels like Mr. Smith. And it
is far from sufficient to overcome the plain language of Section 515, which, as covered above,
does not confer upon the Attorney General officer-appointing power but merely establishes
procedures (oath and commission) for already retained special attorneys who act in an assistant
capacity. Special Counsel Smith is not an assistant.
D. 28 U.S.C. § 533
The last statute cited in the Appointment Order and relied upon by the Special Counsel is
28 U.S.C. § 533 [ECF No. 374 pp. 12–14; see ECF No. 429 pp. 22–23]. Section 533 is housed
within a chapter (Chapter 33) devoted to the FBI. 28 U.S.C. §§ 531–540d. See infra pp. 50–52.
It is titled “Investigative and other officials; appointment,” and it permits the Attorney General to
appoint four different types of “officials” as specified below
The Attorney General may appoint officials—
(1) to detect and prosecute crimes against the United States;
(2) to assist in the protection of the person of the President; and
(3) to assist in the protection of the person of the Attorney General.
(4) to conduct such other investigations regarding official matters under the
control of the Department of Justice and the Department of State as may be
directed by the Attorney General.
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This section does not limit the authority of departments and agencies to investigate
crimes against the United States when investigative jurisdiction has been assigned
by law to such departments and agencies.
28 U.S.C. § 533.32
As a preliminary point, the Appointment Order issued in November 2022 is the first
appointment order or regulation that has cited Section 533 as a source of special-counsel-
appointing authority. The Special Counsel Regulations promulgated in 1999, which replaced the
Independent Counsel regime of the Independent Counsel Act, did not cite Section 533 as a source
of authority. 28 C.F.R. §§ 600.1 et seq. (citing 5 U.S.C. § 301; 28 U.S.C. §§ 509, 510, 515–519).
Nor did the regulation appointing the Special Prosecutor in United States v. Nixon, 418 U.S. 683
(1974). 38 Fed. Reg. 30738, as amended by 38 Fed. Reg. 32805 (citing 5 U.S.C. § 301; 28 U.S.C.
§§ 509, 510). Nor did the Order appointing Special Counsel Robert Mueller, or any preceding
special counsel appointing order. Order No. 3915-2017 (citing 28 U.S.C. §§ 509, 510, 515). In
the Court’s review, Section 533 was cited for the first time in 2022—in the Order appointing
Special Counsel Smith—although it has twice been employed since then.33
Special Counsel Smith argues that Section 533(1) confers on the Attorney General the
authority to appoint special counsels, specifically, constitutional officers wielding the “full power
and independent authority . . . of any United States Attorney.” 28 C.F.R. § 600.6. After careful
review, the Court is convinced that it does not. Congress “does not . . . hide elephants in
mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). Special Counsel
32
The misplaced “and” following subsection (2)—which should properly follow subsection (3)—
appears to stem from a 2002 amendment to Section 533. See Pub. L. 107-273, § 204(e), 116 Stat.
1758, 1776 (2022). This apparent drafting error does not impact the Court’s statutory analysis.
33
Order No. 5730-2023 (appointing David C. Weiss); Order No. 5588-2023 (appointing Robert
K. Hur).
42
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Smith’s interpretation would shoehorn appointment authority for United States Attorney-
equivalents into a statute that permits the hiring of FBI law enforcement personnel. Such a reading
is unsupported by Section 533’s plain language and statutory context; inconsistent with Congress’s
usual legislative practice; and threatens to undermine the “basic separation-of-powers principles”
that “give life and content” to the Appointments Clause. Morrison, 487 U.S. at 715 (Scalia, J.,
dissenting). The Court explains below.
i. The term “officials” is not synonymous with “officers.”
Section 533(1) authorizes the Attorney General to “appoint officials . . . to detect and
prosecute crimes against the United States.” 28 U.S.C. § 533(1). The parties dispute the proper
interpretation of the term “officials.” Defendants argue that “officials” is most naturally read as
“nonofficer employees” [ECF No. 326 pp. 7–8; see ECF No. 364-1 pp. 16–18]. Special Counsel
Smith advances a broader interpretation, arguing that “‘official[s]’ is a generic term that covers
both officers and employees” [ECF No. 374 p. 13]. The Court agrees with Defendants.
Courts interpreting statutes “look to the plain and ordinary meaning of the statutory
language as it was understood at the time the law was enacted.” United States v. Chinchilla, 987
F.3d 1303, 1308 (11th Cir. 2021). “One of the ways to figure out that meaning is by looking at
dictionaries in existence around the time of enactment.” Id. (citation omitted). Here, applicable
dictionary definitions indicate that “officer” and “official,” though overlapping in some areas, are
not synonymous. Definitions of “officer” emphasize the elevated degree of authority,
responsibility, and duty that inheres in the position. Webster’s Third New International Dictionary
(1961) (defining “officer” as “one who holds an office: one who is appointed or elected to serve
in a position of trust, authority, or command esp. as spefic. provided for by law” and “distinguished
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from employee and sometimes from official”).34 These same characteristics are often absent from
definitions of “official,” which tend to describe a more general class of bureaucratic personnel. Id.
(defining “official” as “a person authorized to act for a government . . . esp. in administering or
directing in a subordinate capacity,” but also referring to “one who holds or is invested with an
office”).35 To be sure, some definitions overlap, and the words share linguistic echoes and roots.
See Random House Dictionary of the English Language (1967) (defining “official” as “a person
appointed or elected to an office or charged with certain duties, esp. in the government”). But the
terms are not synonymous, nor can they be superficially substituted. See Concord Mgmt. &
Consulting LLC, 317 F. Supp. 3d at 618–19. Definitions indicate that “officers” are distinguished
from “officials” by the “greater importance, dignity, and independence of [their] position[s].”
Officer, Black’s Law Dictionary (4th ed. 1951). Put succinctly: while all officers may be officials,
not all officials are officers.
It may be true that, in some circumstances, the broader term “officials” can operate as a
“catch-all phrase that includes both officers and employees” [ECF No. 647 p. 53; see ECF No. 374
p. 12]. “But a statute’s meaning does not always ‘turn solely’ on the broadest imaginable
‘definitions of its component words.’ Linguistic and statutory context also matter.” Epic Sys.
Corp. v. Lewis, 584 U.S. 497, 523 (2018) (quoting Yates v. United States, 574 U.S. 528, 537
34
Webster’s Seventh New Collegiate Dictionary (1971) (defining “officer” as one holding an
“office of trust, authority, or command,” not simply that of an unspecified “office”); Black’s Law
Dictionary (4th ed. 1951) (defining “officer” as “one who is lawfully invested with an office,” and
“one who is charged by a superior power (and particularly by government) with the power and
duty of exercising certain functions”); id. (explaining that “‘officer’ is distinguished from an
‘employee’ in the greater importance, dignity, and independence of his position, in requirement of
oath, bond, more enduring tenure, and fact of duties being prescribed by law”).
35
Webster’s Seventh New Collegiate Dictionary (1971) (defining “official” as one “invested with
an office,” but “esp. a subordinate one”); Black’s Law Dictionary (4th ed. 1951) (defining
“official” as “[a]n officer; a person invested with the authority of an office”).
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(2015)); see Harrington v. Purdue Pharma L. P., 144 S. Ct. 2071, 2082 (2024) (“When faced with
a catchall phrase . . . courts do not necessarily afford it the broadest possible construction it can
bear.”). As discussed below, when read in context, “officials” is narrowed by what it describes.
ii. When read in its specific statutory context, Section 533(1) cannot bear
the expansive meaning advanced by Special Counsel Smith.
“When words have several plausible definitions, context differentiates among them.”
United States v. Hansen, 599 U.S. 762, 775 (2023). “[T]he meaning of a word cannot be
determined in isolation, but must be drawn from the context in which it is used.” Deal, 508 U.S.
at 132. Under the noscitur a sociis canon, “a word is known by the company it keeps.” Jarecki v.
G. D. Searle & Co., 367 U.S. 303, 307 (1961). This canon “is often wisely applied where a word
is capable of many meanings in order to avoid giving unintended breadth to the Acts of Congress.”
Id.
Like all statutory terms, “officials” as used in Section 533(1) “does not stand alone but
gathers meaning from the words around it.” Id. When “officials” is read in relation to the
subsections it describes, it is evident that Section 533(1) does not afford the Attorney General
broad power to appoint special counsels. Consider its fellow subsections. Subsections (2) through
(4) describe security and investigative employees within the FBI—bureaucratic personnel making
up the “broad swath of ‘lesser functionaries’ in the Government’s workforce.” Lucia, 585 U.S. at
245 (defining “employees”); see 28 U.S.C. § 533(2)–(4). While undoubtedly important, these
individuals cannot fairly be characterized as constitutional officers who, by definition, exercise
“significant authority pursuant to the laws of the United States.” Buckley, 424 U.S. at 126; see
Edmond, 520 U.S. at 662 (describing authority as “the line between officer and nonofficer”). It is
implausible, then, that Congress intended to wedge appointment power for special counsels
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possessing the “full power . . . of any United States Attorney” into a statute concerning low- and
mid-level law enforcement personnel in a statutory section governing the FBI. 28 C.F.R. § 600.6.36
Section 533(1)’s use of the phrase “detect and prosecute crimes” does not otherwise
transform the provision into a grant of special-counsel-appointing authority. 28 U.S.C. § 533(1)
(emphasis added). In the context of this FBI provision, and drawing from applicable dictionary
definitions, the meaning of “prosecute” naturally encompasses FBI employees who are engaged
or involved in federal investigations and prosecutions. See, e.g., Prosecute, Black’s Law
Dictionary (3d ed. 1933) (“To follow up; to carry on an action or other judicial proceeding; to
proceed against a person criminally.”).37 This could include FBI attorneys and other legal staff,
but it also naturally encompasses non-lawyer FBI personnel involved in prosecutorial efforts to
pursue and/or investigate a crime or claim, such as FBI agents, intelligence officials, and forensic
specialists. At any rate, as Section 533(1)’s subsections clarify, it authorizes only the hiring of
36
This reading comports with how “officials” is used elsewhere in Chapter 33. Section 534 uses
the term to describe positions that are far more consistent with an “employee” designation than an
“officer” designation. See 28 U.S.C. § 534 (describing “officials” that the Attorney General “may
appoint . . . to perform the functions authorized by this section”). Moreover, Congress’s uses the
express phrase “officers and employees” (not the umbrella term “officials”) elsewhere in the same
chapter. 28 U.S.C. § 535(a) (“The Attorney General and the [FBI] may investigate any violation
of Federal criminal law involving Government officers and employees . . . .”); see also 28 U.S.C.
§§ 509, 510 (differentiating between “officers” and “employees”). Reading “officials” to mean
“officers and employees” would conflict with the meaningful variation canon. See In re Failla,
838 F.3d 1170, 1176 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 170 (2012)).
37
Webster’s Third New International Dictionary (1961) (providing various formulations,
including “to follow, follow after, pursue”; “to follow to the end: press to execution or completion:
pursue until finished”; “to develop in detail: go further into: INVESTIGATE”; “to engage in or
proceed with: carry on: PERFORM”; “to institute legal proceedings against, esp.: to accuse of
some crime or breach of law or to pursue for redress or punishment of a crime or violation of law
in due legal form before a legal tribunal”; “to institute legal proceedings with reference” to a
“claim,” an “action,” or a “prosecution” for “public offenses”).
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prosecutorial employees—not constitutional officers like Special Counsel Smith. See 28
U.S.C. §§ 533(2)–(4).
Nor is the Court persuaded by the Special Counsel’s suggestion that reading “officials” as
“non-officer employees” would render superfluous the term “employees” as used in Section 533(1)
[ECF No. 647 p. 53]. This posits an artificial binary. It fails to consider the gradient of authority
that exists between the lowest-level employees and constitutional “Officers” wielding “significant
authority pursuant to the laws of the United States.” Buckley, 424 U.S. at 126. Take the FBI as
an example. An FBI agent is an “employee.” The agent’s supervisor—who possesses more
responsibility and influence than the agent—may rightly be deemed an “official.” And the FBI
Director at the top of the organizational chart is a constitutional “Officer” appointed by the
President and confirmed by the Senate. And among this sliding-scale of authority, context shows
that “official” as used in Section 533(1) cannot be fairly read to mean constitutional officer.
iii. Congress tracks the language of the Appointments Clause when vesting
officer-appointing power in department heads.
Reading “officials” as “officers and employees” would also be contrary to Congress’s
typical legislative practice. As indicated above, when Congress “by Law vest[s] the Appointment
of such inferior Officers . . . in the Heads of Departments,” it does so in a particular way. Art. II,
§ 2, cl. 2. A survey of generalized vesting statutes throughout the United States Code shows that
Congress routinely uses the term “officers,” or the phrase “officers and employees” when vesting
officer-appointing power in department heads.38 Consider the following examples, some of which
were covered above:
38
The Court refers to “generalized” vesting statutes as those which concern the appointment of a
largely undefined group of individuals. See 49 U.S.C. § 323(a) (“The Secretary of Transportation
may appoint and fix the pay of officers and employees of the Department of Transportation and
may prescribe their duties and powers.”). These are distinct from position-specific statutes. See
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➢ “The Secretary of Agriculture may appoint such officers and employees, subject to the
provisions of chapter 51 and subchapter III of chapter 53 of Title 5, and such experts, as
are necessary to execute the functions vested in him by this chapter.” 7 U.S.C. § 610(a)
(emphasis added).
➢ “The Secretary [of Education] is authorized to appoint and fix the compensation of such
officers and employees, including attorneys, as may be necessary to carry out the functions
of the Secretary and the Department.” 20 U.S.C. § 3461(a) (emphasis added).
➢ “The [HHS] Secretary is authorized to appoint and fix the compensation of such officers
and employees, and to make such expenditures as may be necessary for carrying out the
functions of the Secretary under this chapter.” 42 U.S.C.A. § 913 (emphasis added).
➢ “The Secretary of Transportation may appoint and fix the pay of officers and employees
of the Department of Transportation and may prescribe their duties and powers.” 49 U.S.C.
§ 323(a) (emphasis added).
Congress employed this same formulation when vesting officer-appointing power in the Attorney
General for the Bureau of Prisons: “The Attorney General may appoint such additional officers
and employees as he deems necessary.” 18 U.S.C. § 4041.
To be sure, there may be instances in which Congress uses “officials” to confer officer-
appointing power [ECF No. 640 p. 3 (supplemental authority)], but in those instances, Congress
still tracks the constitutional language of the Appointments Clause in a way that reflects officer
status—that is, by appending some variation of “appointed by the President, by and with the advice
and consent of the Senate” to make explicit that “officials” means “officers.”39 10 U.S.C.
§ 137a(a) (authorizing the hiring of six “officials” who “shall be appointed from civilian life by
the President, by and with the advice and consent of the Senate”); 22 U.S.C. § 285a(a)(1)(B)
(describing “officials required by law to be appointed by and with the advice and consent of the
Senate”); 22 U.S.C. § 290g-1(a)(2) (same); 22 U.S.C. § 2651a(d) (authorizing appointment of
28 U.S.C. § 542(a) (“The Attorney General may appoint one or more assistant United States
attorneys in any district when the public interest so requires.”).
39
The term “officials” appears nowhere in the Appointments Clause or in the Constitution.
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officials “who are otherwise authorized to be appointed by the President, by and with the advice
and consent of the Senate”); 28 U.S.C. § 561(c) (describing U.S. marshals as “officials” appointed
by the President “by and with the advice and consent of the Senate”); 50 U.S.C. § 3369d(c)(1)(A)
(authorizing appointment of “officials of such agency or department who occupy a position that is
required to be appointed by the President, with the advice and consent of the Senate”).40 41
Congress regularly intends certain words and phrases “to be read as terms of art connecting
the congressional exercise of legislative authority with the constitutional provision . . . that grants
Congress that authority.” Scheidler v. Nat’l Org. for Women, Inc., 547 U.S. 9, 17–18 (2006)
(collecting cases); see Hansen, 599 U.S. at 775 (“Here, the context of these words—the water in
which they swim—indicates that Congress used them as terms of art.”); F.A.A. v. Cooper, 566
U.S. 284, 292–93 (2012). That seems to be the case in the appointments context, where Congress
adheres closely to the constitutional text, and it would be consistent with the Supreme Court’s
40
The remaining statutes cited in the Special Counsel’s notice of supplemental authority are
inapplicable for one of two reasons. First are those which do not confer officer-appointing power
at all. 10 U.S.C. § 397 (providing that the Secretary “shall designate” an official to serve as
principal advisor from “among officials appointed . . . by and with the advice and consent of the
Senate”)), 10 U.S.C. § 988(c) (definitions section imbedded in statute that does not confer
appointing power), 16 U.S.C. § 831e (mandating that appointments of “employees or officials”—
which are provided for elsewhere in Chapter 12A (Tennessee Valley Authority)—be nonpolitical).
Second are those in which, as best the Court can tell, the term “official” describes a position that
lacks the “significant authority” commensurate with a constitutional officer, Buckley, 424 U.S. at
126, such that the Appointments Clause is not implicated. 6 U.S.C. § 142(a) (providing for
appointment of “senior official” to “assume primary responsibility for privacy policy” at DHS,
and requiring said official to obtain approval from Secretary for subpoenas); 50 U.S.C. § 4306
(authorizing “[t]he President to appoint . . . an official to be known as the alien property
custodian”). To the extent the “officials” in the second category of examples are deemed somehow
to veer into “officer” territory—a proposition untested in caselaw—those statutes would be clear
outliers against the weight of contrary statutory language described above.
41
The Constitutional Lawyers’ amicus brief includes a lengthy string citation to provisions in
which “official” subsumes “officer” [ECF No. 429 p. 22 n.4]. These provisions, mostly
definitional, do not confer officer-appointing power.
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demonstrated preference in this realm. See Edmond, 520 U.S. at 657–58; Weiss, 510 U.S. at 171–
72; Germaine, 99 U.S. at 510.42
In sum, this consistent legislative practice shows that Section 533(1)’s unspecified use of
“officials”—as opposed to “officers,” or “officers and employees”—“is not merely stylistic.”
Edmond, 520 U.S. at 657. Rather, it is telling of Congress’ intent. As the collection of statutes
above shows, “had Congress meant to confer ‘officer’-appointing power via § 533 or any other
provision, ‘it easily could have done so.’” Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at
619 (quoting Baker Botts LLP v. ASARCO LLC, 576 U.S. 121, 129 (2015)).
iv. Section 533’s placement in the statutory scheme compels a more
circumscribed reading.
As noted above, Section 533 is housed in a chapter concerning the “Federal Bureau of
Investigation.” 28 U.S.C. §§ 531–540d.43 It is sandwiched between 28 U.S.C. § 532, a statute
42
The Special Counsel invokes Edmond to argue that the Supreme Court found officer-appointing
authority in a “default statute” with language more general than that of Section 533 [ECF No. 374
p. 12]. Edmond did find statutory appointment authority for Coast Guard judges in 49 U.S.C.
§ 323(a). 520 U.S. at 656. But merely comparing the statutes’ generality ignores a critical,
distinguishing feature: unlike Section 533, the statute in Edmond expressly uses the word “officer.”
49 U.S.C. § 323(a) (authorizing appointment of “officers and employees of the Department of
Transportation”). Edmond held that a vesting statute need “not specifically mention” a particular
officer, so long as the statute’s “plain language . . . appears to give the Secretary power to appoint
them.” Edmond, 520 U.S. at 656. The text of 49 U.S.C. § 323(a) passed that test. Section 533
does not.
43
Special Counsel Smith insists that consideration of Chapter 33’s title, “Federal Bureau of
Investigation,” cannot be considered unless the Court finds that Section 533 is ambiguous
[ECF No. 374 p. 13]. It is true that “the title of a statute cannot limit the plain meaning of the text”
and should be used “[f]or interpretive purposes . . . only when it sheds light on some ambiguous
word or phrase.” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (internal
brackets and quotations omitted). Still, however, there can be no dispute that evaluation of a
statute’s placement in its statutory scheme is a permissible tool of statutory construction. In any
event, with respect to consideration of Section 533’s “title,” the Court sees no legal barrier to
consulting the title here given the parties’ arguments—although such consideration merely
confirms the conclusion that the use of the word “officials” in Section 533(1) does not confer
officer-appointing power in the manner claimed by the Special Counsel.
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about the appointment of the FBI Director, and 28 U.S.C. § 534, which concerns the acquisition,
preservation, and exchange of evidence in criminal cases. Given Section 533’s location, it is
exceedingly unlikely that Congress intended to tuck special-counsel-appointing power into a
chapter devoted to the FBI.44 Several of the surrounding chapters are clearly more natural homes
for such a statute. See 28 U.S.C. §§ 501–530D (Attorney General); 28 U.S.C. §§ 561–575 (U.S.
Attorneys). And as mentioned at length above, until 1999, there was an entire chapter in the DOJ
Section of Title 28 devoted to such independent counsel figures. 28 U.S.C. §§ 591–599
(Independent Counsel Act).
Section 533’s heading, “Investigative and other officials; appointment,” provides an
additional indicator that the provision is cabined to low- or mid-level FBI personnel. While
“headings are not commanding, they supply clues” of congressional intent. Yates, 574 U.S. at 540.
Unlike prior statutes concerning independent counsels, Section 533’s heading lacks any indication
that it concerns a “Special Counsel,” or deals with prosecutorial power at all. Compare 28 U.S.C.
§ 533 with 28 U.S.C. § 592 (“Preliminary investigation and application for appointment of an
independent counsel”), and 28 U.S.C. § 594 (“Authority and duties of an independent counsel”),
and 28 U.S.C. § 594 (United States attorneys); cf. Pub. L. No. 95–521, § 601, ch. 39 (Special
Prosecutor), 92 Stat. 1824 (Oct. 26, 1978). It would be odd indeed if lawmakers—in establishing
an office with the prosecutorial might of a United States Attorney—made no such mention in the
44
In response, Special Counsel Smith cites two out-of-circuit cases in which courts—both in
footnotes—extended Section 533 beyond the FBI context [ECF No. 374 p. 14 (citing United States
v. Hasan, 846 F. Supp. 2d 541, 546 n.7 (E.D. Va. 2012) and United States v. Fortuna, No. 12-cr-
636 2013 WL 1737215, at *2 n.8 (D.N.J. Apr. 22, 2013))]. These cases did not involve
Appointments Clause challenges. They did not engage with the text of 28 U.S.C. § 533 or its
location in the United States Code. And they did not authorize appointment of constitutional
“officers” with the power of the Special Counsel; rather, they approved appointment of ATF
officials (i.e., agents). Accordingly, the Court does not find them persuasive in this context.
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statute’s heading. If Congress had intended to create such a powerful and significant office in
Section 533, it would not have obscurely buried the lede and omitted any such reference from the
statute’s heading, or more importantly, from the text of the provision itself.
***
For the reasons stated above, as a matter of plain text, statutory context, and legislative
practice, Section 533—cited in an appointment order for the first time in November 2022 as
purported authority—does not provide a basis in “Law” for the appointment of Special Counsel
Smith. Art. II, § 2, cl. 2.
E. Special Counsel Smith’s interpretation undermines the separation-of-powers
principles that animate the Appointments Clause and destabilizes Congress’s
carefully crafted statutory structure for the DOJ.
On a more fundamental level, adopting the Special Counsel’s untenable interpretation of
Sections 515(b) and 533 erodes the “basic separation-of-powers principles” that “give life and
content” to the Appointments Clause by wresting from Congress its constitutionally prescribed
role in the officer-appointing process. Morrison, 487 U.S. at 715 (Scalia, J., dissenting). It also
destabilizes Congress’s carefully crafted statutory structure for DOJ.
As the discussion in this Order demonstrates, Congress has carefully enacted a statutory
scheme, consistent with the Appointments Clause, governing the appointment of high-level federal
prosecutors. See Calabresi & Lawson, supra pp. 113–115. Most relevant here, United States
Attorneys, the officers most closely resembling Special Counsel Smith, see 28 C.F.R. § 600.6,
must be nominated by the President and confirmed by the Senate. 28 U.S.C. § 541. Adopting the
position of the Special Counsel allows any Attorney General, without Congressional input, to
circumvent this statutory scheme and appoint one-off special counsels to wield the immense power
of a United States Attorney. This strips from Congress its role in the appointments process, and it
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does so, moreover, in a highly sensitive area involving “life, liberty, and reputation.” Robert H.
Jackson, U.S. Att’y Gen., Address at the Second Annual Conference of United States Attorneys:
The Federal Prosecutor 1 (Apr. 1, 1940) (describing immense power of federal prosecutors over
citizenry).
Absent a statute vesting appointing power elsewhere, the “default manner of appointment
for inferior officers” is Presidential nomination and Senate confirmation. Edmond, 520 U.S. at
660. And while Congress may “vest the Appointment of such inferior Officers, as they see proper,
in . . . Heads of Departments,” Art. II, § 2, cl. 2, it did not do so in the cited statutes. Such a broad
reading results in precisely the type of diffusion and encroachment that concerned the Framers in
drafting the Appointments Clause. Freytag, 501 U.S. at 883–86; Weiss, 510 U.S. at 187–89
(Souter, J., concurring) (“If the structural benefits the Appointments Clause was designed to
provide are to be preserved . . . no branch may aggrandize its own appointment power at the
expense of another.”). The Court thus declines to dilute the appointment power by reading Sections
515(b) and 533(1) as ceding a core legislative function to another branch. See Freytag, 501 U.S.
at 885 (“The Framers recognized the dangers posed by an excessively diffuse appointment power
and rejected efforts to expand that power. So do we.”) (internal citation omitted); id. at 884–86.
IV. United States v. Nixon
The parties disagree about the precedential value of a passage from United States v. Nixon,
418 U.S. 683 (1974) [ECF No. 326 pp. 8–9; ECF No. 374 pp. 8–10; ECF No. 414 pp. 3–4;
ECF No. 364-1 pp. 22–23]. That passage is reproduced below. The Court emphasizes the
statement that serves as the focal point of the parties’ dispute.
Under the authority of Art. II, § 2, Congress has vested in the Attorney General the
power to conduct the criminal litigation of the United States Government. 28 U.S.C.
§ 516. It has also vested in him the power to appoint subordinate officers to assist
him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant
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to those statutes, the Attorney General has delegated the authority to represent the
United States in these particular matters to a Special Prosecutor with unique
authority and tenure. The regulation gives the Special Prosecutor explicit power to
contest the invocation of executive privilege in the process of seeking evidence
deemed relevant to the performance of these specially delegated duties.
Id. at 694–95 (emphasis added and footnote omitted).45 Defendants argue that Nixon’s statement
about the Attorney General’s statutory authority is non-binding dictum and thus should not control
the Court’s statutory analysis (as done above) [ECF No. 326 pp. 8–9; ECF No. 414 pp. 3–4]. The
Special Counsel argues that this statement “formed a necessary element of [Nixon’s] holding,” and
therefore constitutes binding precedent [ECF No. 374 p. 9].
Following a comprehensive review of the Supreme Court record,46 the Court concludes
that the disputed statement from Nixon is dictum. The issue of the Attorney General’s appointment
authority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedly
precedential in several areas—for example, in its pronouncements on the justiciability of an intra-
branch controversy; the test for issuing Rule 17(c) subpoenas; and application of executive
privilege in the face of a valid subpoena. Those issues were presented, argued, and carefully
considered. The same is not true of the Attorney General’s statutory appointment authority. At
most, Nixon assumed that antecedent proposition, without deciding it. United States v. Verdugo-
Urquidez, 494 U.S. 259, 272 (1990). Thus, Nixon’s passing remarks on that point are not binding
45
For the sake of completeness, the omitted footnote provides, in relevant part, that “[t]he
regulation issued by the Attorney General pursuant to his statutory authority, vests in the Special
Prosecutor plenary authority to control the course of investigations and litigation related to”
Watergate. Id. at 694 n.8.
46
The Court collected and reviewed all available filings in United States v. Nixon, 418 U.S. 683
(1974) (No. 73-1766), and Nixon v. United States, 418 U.S. 683 (1974) (No. 73-1834). This
includes the applicable cert petitions and merits briefing, along with amicus briefs, the full
appendix, and the consolidated oral argument transcript. Oral Argument, United States v. Nixon,
418 U.S. 683 (1974) (Nos. 73-1766, 73-1834).
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precedent in “future cases,” as here, “that directly raise the question[].” Id. Giving these remarks
precedential weight runs the risk that “stray language” from the Nixon opinion “will take on
importance in a new context that its drafters could not have anticipated.” Rudolph v. United States,
92 F.4th 1038, 1045 (11th Cir. 2024).
This section proceeds in four parts. The Court (1) reviews the terms “holding” and “dicta”;
(2) provides context to situate the controversy in Nixon; (3) analyzes the disputed passage from
Nixon; and (4) discusses the proper weight that nevertheless should be accorded to the Nixon
dictum. This section is lengthy because the Nixon dictum has taken on significance in related
cases, and a full explication of the record is necessary. See In re Sealed Case, 829 F.2d 50 (D.C.
Cir. 1987); In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019).
A. Legal Standards
“Not all text within a judicial decision serves as precedent.” Bryan A. Garner et al., The
Law of Judicial Precedent § 4, at 44 (2016). Thus, distinguishing between precedential “holdings”
and non-binding “dicta” is crucially important. See Fresh Results, LLC v. ASF Holland, B.V., 921
F.3d 1043, 1049 (11th Cir. 2019). A holding “comprises both the result of the case and those
portions of the opinion necessary to that result.” United States v. Caraballo-Martinez, 866 F.3d
1233, 1244 (11th Cir. 2019) (internal quotation marks and citations omitted); see Black’s Law
Dictionary (11th ed. 2019) (defining “holding” as “[a] court’s determination of a matter of law
pivotal to its decision; a principle drawn from such a decision.”). Dictum, on the other hand, is “a
statement that neither constitutes the holding of a case, nor arises from a part of the opinion that is
necessary to the holding of the case.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)
(quotation marks omitted). While courts must dutifully follow precedential holdings, “dicta is not
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binding on anyone for any purpose,” Edwards, 602 F.3d at 1298, although Supreme Court dicta
does merit consideration as discussed below.
Statements in an opinion that extend beyond the scope of the issues presented, briefed, and
argued generally constitute dicta. “Questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.” United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022) (quoting
Webster v. Fall, 266 U.S. 507, 511 (1925)); United States v. L. A. Tucker Truck Lines, Inc., 344
U.S. 33, 38 (1952) (“The effect of the omission was not there raised in briefs or argument nor
discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point.”).
The same is generally true of assumptions that are peripheral to the issues presented. “The
Court often grants certiorari to decide particular legal issues while assuming without deciding the
validity of antecedent propositions, and such assumptions—even on jurisdictional issues—are not
binding in future cases that directly raise the questions.” Verdugo-Urquidez, 494 U.S. at 272
(internal citations omitted); Garner et al., supra at 84 (“Judicial opinions are always premised on
a series of assumptions about what the law is. Yet those assumptions—whether implicit or
explicit—aren’t generally considered precedential.”). As explained by Chief Justice John
Marshall:
It is a maxim not to be disregarded, that general expressions, in every opinion, are
to be taken in connection with the case in which those expressions are used. If they
go beyond the case, they may be respected, but ought not to control the judgment
in a subsequent suit when the very point is presented for decision. The reason of
this maxim is obvious. The question actually before the Court is investigated with
care, and considered in its full extent. Other principles which may serve to illustrate
it, are considered in their relation to the case decided, but their possible bearing on
all other cases is seldom completely investigated.
Cohens v. State of Virginia, 19 U.S. 264, 399–400 (1821).
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Lastly, “not all dicta are created equal.” Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1323
(11th Cir. 2021) (Pryor, C.J.) (quoting Garner et al., supra at 69). Dicta from the Supreme Court
are entitled to considerable—and in some cases, even precedential—weight. Schwab v. Crosby,
451 F.3d 1308, 1325–26 (11th Cir. 2006) (collecting cases); Peterson v. BMI Refractories, 124
F.3d 1386, 1392 n.4 (11th Cir. 1997) (emphasizing that “dicta from the Supreme Court is not
something to be lightly cast aside”). Inferior courts must accord Supreme Court dicta appropriate
respect and deference. United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).
B. Decisional Context
To discern whether the disputed passage from Nixon constitutes part of its holding, it helps
to situate it in context, including by ascertaining the precise action taken by the trial court.
Rudolph, 92 F.4th at 1045 (advising lower courts to “consider opinions in their context, including
the questions presented and the facts of the case” in evaluating the precedential value of statements
therein); see Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 373–74 (2023) (emphasizing
that Supreme Court opinions “dispose of discrete cases and controversies and they must be read
with a careful eye to context”); Garner et al., supra at 52.
Nixon involved Special Prosecutor Leon Jaworski’s investigation and prosecution of those
involved in the Watergate scandal. The Special Prosecutor issued a subpoena to President Nixon—
an unindicted co-conspirator—requiring the production of certain tapes and documents relevant to
the investigation. Nixon, 418 U.S. at 686. Counsel for President Nixon moved to quash the
subpoena, raising three principal arguments. United States v. Mitchell, 377 F. Supp. 1326, 1328–
29 (D.C.C. 1974).
First, President Nixon argued that “courts are without authority to rule on the scope or
applicability of executive privilege.” Id. at 1329. The district court found this jurisdictional
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argument to be foreclosed by circuit precedent. Id. (citing Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.
1973)). Second—and most important to Defendants’ Motion at issue here—President Nixon
argued that the intra-branch dispute presented a nonjusticiable political question. Id. Referencing
the appointing regulation, which carried “the force of law,” the district court found that the Special
Prosecutor possessed sufficient independence to create a justiciable controversy. Id. at 1329 & n.7
(citing 38 Fed. Reg. 30,738). Third, President Nixon argued on the merits that the requirements
for issuance of a Rule 17(c) subpoena had not been satisfied, also asserting a confidentiality
privilege. Id. at 1329. The district court disagreed. Id. at 1330–31. Notably, none of these
arguments (or the district court’s resolution thereof) had anything to do with the Attorney
General’s statutory appointment authority or the Appointments Clause more generally.
At the Supreme Court, President Nixon re-raised the same challenges.47 Nixon, 418 U.S.
at 686. On the justiciability question, President Nixon again asserted that the intra-branch nature
of the dispute presented a nonjusticiable political question outside the purview of the judiciary. Id.
at 691–92.48 The Supreme Court ultimately rejected this argument. Id. at 697. Before doing so,
however, the court offered a prefatory paragraph to contextualize “the nature of the proceeding for
which the evidence is sought.” Id. at 694. The relevant portion of that paragraph—which was
also reproduced above, supra pp. 53–54—provides:
47
There was no intermediate appellate review in Nixon; the Supreme Court granted certiorari
before judgment. Nixon, 418 U.S. at 686–87.
48
See Brief for the Respondent, Cross-Petitioner at 27–48; id. at 16–17 (“Under the standards set
forth in Baker v. Carr, 369 U.S. 186 (1962), this intra-branch dispute raises a political question
which the federal courts lack jurisdiction to decide. The district court does not have the power to
substitute its judgement for that of the President on matters exclusively within the President’s
discretion.”); id. at 29–30 (challenging the “authority of the court or any branch of the government
to intervene in a solely intra-branch dispute”); id. at 41 (same); Reply Brief for the Respondent,
Cross-Petitioner at 4–13.
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Under the authority of Art. II, § 2, Congress has vested in the Attorney General the
power to conduct the criminal litigation of the United States Government. 28 U.S.C.
§ 516. It has also vested in him the power to appoint subordinate officers to assist
him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant
to those statutes, the Attorney General has delegated the authority to represent the
United States in these particular matters to a Special Prosecutor with unique
authority and tenure. The regulation gives the Special Prosecutor explicit power to
contest the invocation of executive privilege in the process of seeking evidence
deemed relevant to the performance of these specially delegated duties.
Id. at 694–95 (footnote omitted).
Following this stage-setting paragraph, the Supreme Court determined that the extant
regulation’s delegation of authority—both in the independence it created in Special Prosecutor
Jaworksi and in the limitations it placed on his removal—established a justiciable case or
controversy. Id. at 694–98; see id. at 696 (explaining that “[s]o long as this regulation remains in
force the Executive Branch is bound by it”). “In light of the uniqueness of the setting in which the
conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as
a barrier to justiciability.” Id. at 697.
C. Analysis
With this context in mind, the Court proceeds to analyze the disputed statement from
Nixon, ultimately concluding that it is dictum.
i. The Attorney General’s appointment authority was not an issue before
the Supreme Court in Nixon.
In Nixon, the Supreme Court granted certiorari to decide six questions: five from the
Special Prosecutor’s petition, and one from President Nixon’s cross-petition.49 See Petition and
49
The Nixon Court also ordered the parties to file supplemental briefs on the following two
questions: (1) “Is the District Court order of May 20, 1974, an appealable order?” and (2) “Does
this Court have jurisdiction to entertain and decide the petition for mandamus transmitted by the
Court of Appeals to this Court?” Docket Sheets (Nos. 73-1766, 73-1834), Neither of those
questions—nor the briefing submitted in response—concerned the validity of the Special
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Cross-Petition for Writ of Certiorari Before Judgment, United States v. Nixon, 418 U.S. 683 (1974)
(Nos. 73-1766, 73-1834). Those questions are copied verbatim below:
Special Prosecutor’s Petition
1. Whether the President, when he has assumed sole personal and physical control over
evidence demonstrably material to the trial of charges of obstruction of justice in a federal
court, is subject to a judicial order directing compliance with a subpoena duces tecum
issued on the application of the Special Prosecutor in the name of the United States.
2. Whether a federal court is bound by the assertion by the President of an absolute “executive
privilege” to withhold demonstrably material evidence from the trial of charges of
obstruction of justice by his own White House aides and party leaders, upon the ground
that he deems production to be against the public interest.
3. Whether a claim of executive privilege based on the generalized interest in the
confidentiality of government deliberations can block the prosecution’s access to evidence
material and important to the trial of charges of criminal misconduct by high government
officials who participated in those deliberations, particularly where there is a prima facie
showing that the deliberation occurred in the course of the criminal conspiracy.
4. Whether any executive privilege that otherwise might have been applicable to discussions
in the offices of the President concerning the Watergate matter has been waived by previous
testimony pursuant to the President’s approval and by the President’s public release of
1,216 pages of edited transcript of forty-three Presidential conversations related to
Watergate.
5. Whether the district court properly determined that a subpoena duces tecum issued to the
President satisfies the standards of Rule 17(c) of the Federal Rules of Criminal Procedure
because an adequate showing has been made that the subpoenaed items are relevant to
issues to be tried and will be admissible in evidence.
President Nixon’s Cross-Petition
1. Whether, under the Constitution, a grand jury has the authority to charge an incumbent
President as an unindicted co-conspirator in a criminal proceeding.
As the Nixon opinion reflects, the questions presented—that is, “[t]he questions actually
before the Court”—were “investigated with care, and considered in their fullest extent.” Cohens,
Prosecutor. See Supplement Brief for the Petitioner, No. 73-1766; Brief for Respondent, Cross-
Petitioner, No. 73-1766.
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19 U.S. at 399. The same is not true of the Attorney General’s statutory appointment authority, a
peripheral subject that was not raised in the case. To reiterate, “[t]he Court often grants certiorari
to decide particular legal issues while assuming without deciding the validity of antecedent
propositions, and such assumptions—even on jurisdictional issues—are not binding in future cases
that directly raise the questions.” Verdugo-Urquidez, 494 U.S. at 272; see Becton, 632 F.2d at
1296 n.3; Caraballo-Martinez, 866 F.3d at 1245; see also United States v. Manafort, 321
F. Supp. 3d 640 (E.D. Va. 2018).50 Because the statutory-authority question was not before the
Supreme Court, the opinion’s single prefatory sentence does not amount to a precedential holding.
ii. The Special Prosecutor’s validity was uncontested.
A case is not “‘binding precedent’ on points that were not there raised in briefs or argument
nor discussed in the opinion.” Bourdon v. United States Dep’t of Homeland Sec., 940 F.3d 537,
548–49 (11th Cir. 2019) (internal quotation marks omitted); Garner et al., supra at 84–85. The
rationale behind such a rule is sensible. Where “the issue addressed in the passage was not
presented as an issue, [and] hence was not refined by the fires of adversary presentation,” it is far
less likely to constitute a carefully reasoned, essential part of the court’s opinion. United States v.
Crawley, 837 F.2d 291, 293 (7th Cir. 1988) (Posner, J.) (defining “dictum”).
Across hundreds of pages of briefing (and hours of oral argument) in Nixon, neither party
challenged the Special Prosecutor’s validity or the Attorney General’s appointment authority. In
fact, on numerous occasions, President Nixon expressly stated that he did not contest these points.
Brief for the Respondent at 42 (stating, in reference to the regulation, that “the President has not
50
In United States v. Manafort, 321 F. Supp. 3d 640 (E.D. Va. 2018), the court determined that
Nixon’s line “[s]o long as this regulation is extant it has the force of law,” was dictum. Id. at 659
(quoting Nixon, 418 U.S. at 695); see also id. (“Nixon is inapposite inasmuch as the holding there
did not adjudicate the legal authority of a special prosecutor.”).
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in the past nor does he here challenge those powers that were given to the Special Prosecutor in
Watergate-related matters”); Reply Brief for the Respondent at 8 (emphasizing that “[w]e do not
contest the Special Prosecutor’s assertion that his authority is derived from the Attorney General”);
see Tr. of Oral Argument, Nos. 73-1766, 73-1834. The Special Counsel acknowledges as much
[ECF No. 374 p. 9 (accepting that “President Nixon did not contest that statutory analysis”)]. This
absence of argument on the appointment-authority point further cements the disputed passage’s
status as dictum. The parties themselves litigated the entire case without touching the issue.
iii. The Court’s statement on the Attorney General’s statutory authority
was not “necessary” to its resolution of the justiciability issue.
Even though the statutory-authorization question was not at issue, and despite its absence
from the record, Special Counsel Smith still contends that Nixon’s comment on this point “formed
a necessary element of its holding” [ECF No. 374 p. 9]. He argues that “finding statutory authority
for the appointment was thus central to the Court’s conclusion that ‘[s]o long as this regulation
[setting forth the Special Prosecutor’s authority] is extant it has the force of law’” [ECF No. 374
p. 9 (quoting Nixon, 418 U.S. at 695) (alterations in Opposition)]. This “read[s] too much into
too little.” Nat’l Pork Producers Council, 598 U.S. at 373 (stressing that opinions must “be read
with a careful eye to context”).
The disputed passage is located within a prefatory, stage-setting paragraph which merely
served to tee up the case-or-controversy analysis that followed. As recap, President Nixon argued
that the case presented a nonjusticiable political question by virtue of the intra-branch nature of
the dispute. See supra p. 58 n.48. The Nixon Court disagreed. “[J]usticiability does not depend
on such a surface inquiry.” 418 U.S. at 693. Instead, Nixon stated that “courts must look behind
names that symbolize the parties to determine whether a justiciable case or controversy is
presented.” Id. (citation omitted). In doing so, Nixon zoomed out and provided a high-level
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background paragraph explaining how the case landed at the Supreme Court. Id. at 694 (“Our
starting point is the nature of the proceeding for which the evidence is sought—here a pending
criminal prosecution.”). It is within this overview paragraph that the disputed dictum is located.
Properly situated in this context, therefore, Nixon’s remark on the Attorney General’s
statutory authority is more akin to an “aside like statement” or digression, United States v. Files,
63 F.4th 920, 929 & n.7 (collecting similar examples), than a “determination of a matter of law
pivotal to its decision,” Holding, Black’s Law Dictionary (11th ed. 2019). See Georgia Ass’n of
Latino Elected Offs., Inc. v. Gwinnett Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1119–
20 (11th Cir. 2022) (determining an earlier case’s “prefatory statement” about a statute’s operation
was dictum because it wasn’t germane to resolving the issues presented).
To be sure, that President Nixon delegated to the Special Prosecutor (via the regulation)
the power to “determin[e] whether or not to contest the assertion of ‘Executive Privilege’ or any
other testimonial privilege,” 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805, was integral
to Nixon’s justiciability holding. 418 U.S. at 694–97. This delegation assured the Supreme Court
that “concrete adverseness” existed between the parties. Id. at 697 (quoting Baker v. Carr, 369
U.S. at 204); see id. at 696 (explaining that “[s]o long as this regulation remains in force the
Executive Branch is bound by it”). In other words, two features were essential to the justiciability
holding: (1) the nature of the parties’ relationship as defined in the very broad delegation of
authority in the regulation; and (2) the fact that the regulation had not been revoked. But Nixon’s
passing reference to statutory authority was not essential to the analysis, and nothing in the
remainder of the decision suggests that the Supreme Court was reasoning from its earlier passing
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remark.51 See Sarnoff v. Am. Home Prod. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (Posner, J.)
(defining as “dictum” a “statement in a judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding—that, being peripheral, may not have
received the full and careful consideration of the court that uttered it”).
D. As dictum, Nixon’s statement is unpersuasive.
Having determined that the disputed passage from Nixon is dictum, the Court considers the
appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out,
thoroughly reasoned, and carefully articulated” is due near-precedential weight. Schwab, 451 F.3d
at 1325–26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by
Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent
statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)).
The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” Id. at 1325–26. For
these reasons, the Court concludes it is not entitled to considerable weight.
i. Nixon did not analyze the relevant statutes.
First, Nixon does not engage in any statutory analysis of the cited provisions. Although
Nixon “gave passing reference to the cited statutes,” the opinion “provided no analysis of those
provisions’ text.” Trump, 144 S. Ct. at 2351 (Thomas, J., concurring). Indeed, the extent of
Nixon’s discussion of the statutes comes in a single sentence: “[Congress] vested in [the Attorney
General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28
U.S.C. §§ 509, 510, 515, 533.” 418 U.S. at 694. No more is provided. Thus, giving Nixon’s
dictum near-precedential weight in resolving the Motion—which calls for a thorough analysis of
51
Nor can it be said that the Nixon Court’s own language—“acting pursuant to [statutes]”—
contains any substantive commentary on the validity of the cited statutes for appointment purposes
[ECF No. 647 pp. 116–117 (Meese amici argument)].
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the statutory text—runs the risk that the Supreme Court’s “language will take on importance in a
new context that its drafters could not have anticipated.” Rudolph, 92 F.4th at 1045.
ii. Nixon was decided prior to the development of recent Appointments
Clause jurisprudence.
Second, Nixon was decided in 1974. In the subsequent half century, the Supreme Court
has placed a renewed emphasis on structural principles underpinning the Appointments Clause,
beginning with Buckley v. Valeo, 424 U.S. 1 (1976), and continuing through various other
important cases. See generally Calabresi & Lawson, supra at 124–25 (examining the “rebirth of
the Appointments Clause”); Freytag, 501 U.S. at 878; Edmond, 520 U.S. at 659–60; Weiss, 510
U.S. at 182–189 (Souter, J., concurring); Arthrex, 594 U.S. at 12–14. These post-Nixon
developments in Appointments Clause jurisprudence, and the Supreme Court’s corresponding
emphasis on structural principles behind that provision, lessen the force of the disputed dictum.
iii. The out-of-circuit cases cited by the Special Counsel are
equally unpersuasive.
Special Counsel Smith cites two out-of-circuit appellate cases in support of his position
that Nixon’s statutory-authority statement is binding [ECF No. 374 pp. 9–10]. Both decisions
determined that Nixon was dispositive on the statutory-authority question. Respectfully, the Court
disagrees. Like Nixon, neither engaged with the text of the statutes at issue.
The Court starts with In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), which concerned a
challenge to Independent Counsel Lawrence Walsh’s prosecution of the Iran-Contra scandal. As
authority for creation of the “Office of Independent Counsel: Iran/Contra,” the Attorney General
cited 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C. § 301. 829 F.2d at 55; see 28 C.F.R. § 601. Despite
expressly stating that “these provisions”—that is, 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C.
§ 301—“do not explicitly authorize the Attorney General to create an Office of Independent
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Counsel virtually free of ongoing oversight,” the circuit court nevertheless “read them as
accommodating the delegation at issue here.” Id. at 55 (emphasis added). And then the court
stated, in an attached footnote, that Nixon “presupposed the validity of a regulation appointing the
Special Prosecutor.” Id. at 55 n.30 (emphasis added). No analysis of the statutes was provided.52
More recently, in In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019), the same
circuit court addressed a challenge to the authority of Special Counsel Robert Mueller, a
contemporary special counsel serving in a role akin to that of Special Counsel Smith. The court
characterized the abbreviated statutory-authority remarks from Nixon and In re Sealed Case as
binding, viewing them as necessary “antecedents” to those cases’ holdings. Id. at 1053–54. And
then, relying on those remarks, the court found no further analysis of the statutes to be necessary.
Id. at 1054 (“Because binding precedent establishes that Congress has ‘by law’ vested authority in
the Attorney General to appoint the Special Counsel as an inferior officer, this court has no need
to go further to identify the specific sources of this authority.”).
As the foregoing discussion demonstrates, the decisions in In re Sealed Case and In re
Grand Jury Investigation relied on “presuppositions” and “antecedents” to determine that Nixon—
which itself did not engage with the applicable statutory text—was dispositive and foreclosed any
statutory challenge. But as explained above, the Supreme Court has cautioned that
“presuppositions” and “antecedents” of this sort “are not binding in future cases that directly raise
the questions.” Verdugo-Urquidez, 494 U.S. at 272. Unlike Nixon, this case does “directly raise”
52
There may be other reasons to doubt the persuasive force of In re Sealed Case’s holding. See
Calabresi & Lawson, supra at 125–27 (arguing that the appellant in that case, Lt. Col. Oliver North,
focused on the preemptive effect of the Independent Counsel Act, without raising a frontal
challenge to the Attorney General’s appointment authority under the relied-upon statutes).
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the statutory-authority question. And because neither of the out-of-circuit cases considered this
question in a meaningful way, the Court does not find them persuasive here.
In sum, the prefatory, passing remark in Nixon about 28 U.S.C. §§ 509, 510, 515, 533, does
not stand as binding precedent for a point that was not raised, argued, disputed, or analyzed in that
case, even if possibly assumed. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 557 (2001)
(Scalia, J., dissenting) (collecting cases); Webster, 266 U.S. at 511. Nor would such a treatment
accord with the tailored manner in which the Supreme Court has defined and described its own
Appointments Clause holdings in reference to the questions actually before it in those decisions.53
V. Principal versus Inferior Officer Designation
This brings the Court to its final point on the Appointments Clause challenge, prior to
addressing remedy. Up to this juncture, the Court has proceeded under the premise, advanced by
Special Counsel Smith, that he is an “inferior Officer,” not a principal officer requiring Presidential
nomination and Senatorial consent [ECF No. 405 pp. 6–12]. Defendants and the Meese amici
contest this assertion, and it is a point worthy of consideration given the virtually unchecked power
given to Special Counsel Smith under the Special Counsel Regulations. Ultimately, however, after
examining the broad language in Supreme Court cases on the subject—and seeing a mixed picture,
53
Freytag, 501 U.S. at 890 (“The appointment authority of the ‘Courts of Law’ was not before
this Court in Buckley. Instead, we were concerned with whether the appointment of Federal
Elections Commissioners by Congress was constitutional under the Appointments Clause.”);
Weiss, 510 U.S. at 173 (distinguishing prior cases that “simply do not speak to the issue” before
the Court); Edmond, 520 U.S. at 665–66 (holding that the implied principal-officer designation in
Freytag “does not control our decision here” where the question was squarely presented). The
Supreme Court made this very point in a recently decided case, albeit not in the Appointments
Clause context. See Campos-Chaves v. Garland, 144 S. Ct. 1637, 1651 (2024) (explaining that a
prior opinion’s statement on the meaning of a statutory provision was dicta because that point “was
not at issue,” and the Court “did not reach out to decide today’s question in that case”).
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even if a compelling one in favor of a principal designation—the Court elects, with reservations,
to reject the principal-officer submission and to leave the matter for review by higher courts.
A. Arguments of Parties
The arguments on the Motion, developed further during argument, are as follows. Special
Counsel Smith contends that he is an inferior officer because he is “subject to supervision and
oversight by other officers appointed by the President with Senate consent” [ECF No. 405 p. 6].
He cites to Morrison and Edmond for this proposition, stressing the following factors: (1) he
is subject to removal by a higher Executive branch official for good cause, as was the case for the
now-defunct independent counsel; (2) he is empowered to perform “limited duties” within a
“limited” jurisdiction that is temporary and expires when his charge is over; (3) he “reports to and
is supervised by the Attorney General” based on the terms of the Special Counsel Regulations; and
(4) when all else fails, the Attorney General can remove the extant regulation and create at-will
removal by amending or eliminating the regulation, or amending the Appointment Order itself
[ECF No. 405 pp. 6–8].
Defendants and the Meese amici take the principal-officer view, urging that Special
Counsel Smith wields the same authority as a United States Attorney per the Regulations, without
a functional superior supervising or directing him, and without the important tool of at-will
removal [ECF No. 326 p. 9 (“The authority he attempts to employ as Special Counsel far exceeds
the power exercisable by a non-superior officer, authority that Congress has not cloaked him
with.”); ECF No. 647 p. 7 (adopting Meese principal-officer argument); ECF No. 611 p. 3 (“At
bottom, former President Trump and amici argue the appointment of Special Counsel Jack Smith
was unconstitutional insofar as Smith is a “principal officer,” whose appointment must come from
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the President alone with the advice and consent of the Senate.”); ECF No. 364-1 pp. 20–22 (citing
Calabresi & Lawson, supra at 128–134); ECF No. 647 pp. 25–32].
B. Legal Standards
The Supreme Court has “not purport[ed] to set forth a definitive test” for distinguishing
between principal and inferior officers, although the relevant cases, principally Morrison and
Edmond, provide informative markers. Edmond, 520 U.S. at 661; Morrison, 487 U.S. at 671.
In Morrison v. Olson, 487 U.S. 654 (1988), the Court considered the status of the now-
defunct independent counsel under the former Independent Counsel Act. The Court was careful
“not [to] attempt to decide exactly where the line falls between the two types of officers,” but it
enumerated the following four factors in route to “clearly” determining that the independent
counsel fell on the inferior side of that line: (1) she was “subject to removal by a higher Executive
Branch official,” even though she was not “subordinate” to the Attorney General given her
“independent discretion”; (2) she was “empowered by the Act to perform only certain, limited
duties,” which did not include formulation of policy; (3) her office was “limited in jurisdiction” as
determined by the judicial division; and (4) her office was “limited in tenure” insofar as she was
“appointed essentially to accomplish a single task.” Id. at 671–672. Justice Scalia criticized this
view in dissent, arguing that the independent counsel was not “subordinate to another officer” and
was removable only for good cause. Id. at 723 (Scalia, J., dissenting).
Almost ten years later in Edmond v. United States, 520 U.S. 651 (1997), the Supreme Court
fleshed out the principal versus inferior officer inquiry in a case involving judges of the Coast
Guard Court of Criminal Appeals. The bulk of the majority’s analysis is contained in the passage
quoted below, although further important considerations—removability at will and power to
render final decisions—feature in the decision too:
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Generally speaking, the term ‘inferior officer’ connotes a relationship with some
higher ranking officer or officers below the President: Whether one is an “inferior”
officer depends on whether he has a superior. It is not enough that other officers
may be identified who formally maintain a higher rank, or possess responsibilities
of a greater magnitude. If that were the intention, the Constitution might have used
the phrase “lesser officer.” Rather, in the context of a Clause designed to preserve
political accountability relative to important Government assignments, we think it
evident that “inferior officers” are officers whose work is directed and supervised
at some level by others who were appointed by Presidential nomination with the
advice and consent of the Senate.
Id. at 662–63. Continuing forward, the decision stressed that “[t]he power to remove officers . . . is
a powerful tool for control,” noting the parties’ concession that the judicial officer at issue was
removable without cause. Id. at 664 (citing Bowsher v. Synar, 478 U.S. 714, 727 (1986), and
Myers v. United States, 272 U.S. 52 (1926)). And then, the Supreme Court commented on the
degree to which an officer’s decisions can be “reverse[d]” or countermanded by a higher entity or
officer, ultimately concluding that the judges at issue remained inferior, because their decisions
still were reviewed by a higher court, and because they lacked “power to render a final decision
on behalf of the United States unless permitted to do so by other Executive officers.” Id. at 665.
From these two decisions, courts have distilled three key factors in evaluating the inferior-
principal question: (1) whether an officer is subject to substantial supervision and direction of a
principal officer; (2) whether an officer is removable without cause—perhaps the weightiest factor;
and (3) whether an officer’s decisions are subject to reversal by a supervisor in the executive
branch. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C.
Cir. 2012); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613. Again, however, the
Supreme Court “has been careful not to create a rigid test” for discerning between the two types
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of officers, instead employing what appears to be a “case-by-case analysis.” Arthrex, 594 U.S. at
47 (Thomas, J., dissenting).54
C. Discussion
Against this backdrop, the Court examines whether Special Counsel Smith is a principal
or inferior officer under the operative regulatory framework and available Supreme Court
standards.55
i. Factual Development
As a preliminary matter, the parties agree that the Court should evaluate the principal
versus inferior question, and indeed the entire Appointments Clause dispute, as a matter of law in
accordance with the powers and authority delineated in the operative Special Counsel Regulations
and applicable statutes [ECF No. 619 p. 1; ECF No. 620 pp. 8–12; see ECF No. 617 pp. 7–13].
The Court expresses some hesitation in this regard and lacks a detailed understanding of the actual
extent and mechanics of supervision and control over Special Counsel Smith.56 Nevertheless,
54
Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW
Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) (“Although we did not explicitly
overrule Morrison in Edmond, it is difficult to see how Morrison’s nebulous approach survived
our opinion in Edmond. Edmond is also consistent with the Constitution’s original meaning and
therefore should guide our view of the principal-inferior distinction.”); Concord Mgmt. &
Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because
it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond.
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme
Court’s “prerogative of overruling its own decisions”). Defendants have not argued for the
overruling of Morrison in this court, although the matter was raised at argument by the Landmark
Legal amici [ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison)].
55
The Court notes that neither party raises a direct challenge to the validity of the Special Counsel
Regulations, which have remained in effect without change since their promulgation in 1999.
56
Cf. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 610–612 (appearing to express a
similar lack of clarity on degree of Attorney General’s countermanding authority and extent to
which Department’s policies shaped special counsel’s actions).
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neither party pressed for an evidentiary hearing on the Appointments Clause issue; the Special
Counsel appears to have taken the questionable position that such inquiries intrude upon privileged
Department deliberations; and the Court generally agrees that judicial treatment of Appointments
Clause challenges has tracked the level of supervision and direction by reference to statutes and/or
regulations only.57 The Court thus proceeds accordingly, referencing the regulatory framework in
effect at the time of the subject Appointment Order and in force today. Nixon, 418 U.S. at 695
(“So long as this regulation is extant it has the force of law.”) (citing United States ex rel. Accardi
v. Shaughnessy, 347 U.S. 260, 265 (1954)); see Serv. v. Dulles, 354 U.S. 363, 372 (1957).
ii. The Special Counsel Regulations impose almost no supervision or
direction over the Special Counsel and give him broad power to render
final decisions on behalf of the United States.
The Special Counsel Regulations give to the special counsel an exceedingly broad
charge—to “exercise, within the scope of his or her jurisdiction, the full power and independent
authority to exercise all investigative and prosecutorial functions of any United States attorney,”
28 C.F.R. § 600.6—and then impose virtually no mechanism for supervision or control by the
Attorney General. Several key features inform this view, tracking the regulations on the subjects
of consultation, supervision, and countermanding (with removal to follow later):
First, a special counsel is under no regulatory obligation to consult with the Attorney
General “about the conduct of his or her duties and responsibilities.” 28 C.F.R. § 600.6. Quite the
57
What is more, during the hearing, and specifically during questioning about the Special
Counsel’s degree of direction and supervision vis-Ã -vis the Attorney General, counsel for the
Special Counsel refused to answer the Court’s questions regarding whether the Attorney General
had played any actual role in seeking or approving the indictment in this case [ECF No. 647
pp. 147–151]. In doing so, counsel appeared to invoke a deliberative process privilege or other
“standard Justice Department [policy],” although none of the Court’s questions solicited the
substance of any internal deliberations [ECF No. 647 pp. 147–151]. Ultimately, counsel for the
Special Counsel appeared to acknowledge some degree of actual oversight consistent with the
Regulations, but again resisted any further representation [ECF No. 647 p. 148].
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opposite, it is up to the special counsel to determine whether to “inform or consult with the
Attorney General or others within the Department about the conduct of his or her duties and
responsibilities.” Id.
Second, a special counsel must “comply with the rules, regulations, procedures, and
practices and policies of the Department,” and he shall “consult with appropriate offices within the
Department for guidance with respect to [those] established practices.” 28 C.F.R. § 600.7(a). But
nothing in that general policy-consultation directive—a directive that applies only to consultation
with “appropriate offices within the Department” about general Department-wide policies—
appears to limit a special counsel’s specific decision-making in conducting his investigation and
prosecution.
Third, still on the subject of consultation, the Regulations give full discretion to the special
counsel whether to “consult directly with the Attorney General”—even when the special counsel
“conclude[s] that the extraordinary circumstances of any particular decision would render
compliance with required review and approval procedures by the designated Departmental
component inappropriate.” Id. § 600.7(a). So even in those difficult circumstances, the special
counsel is the one to decide “whether to consult directly with the Attorney General,” again leaving
no mandatory consultation in the regulations themselves. Id.
Fourth, turning to mechanisms for “notification” between the special counsel and the
Attorney General, the Regulations require the special counsel to “notify the Attorney General of
events in the course of his or her investigation in conformity with the Departmental guidelines
with respect to Urgent Reports.” Id. § 600.8. But nothing in that provision actually requires the
special counsel to do anything other than to “notify” the Attorney General of certain developments.
See Justice Manual 1-13.000 (providing non-exhaustive list of “major developments,” but
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explaining that Urgent Reports impose only a “reporting,” “notice requirement” that “should not
interrupt, alter, or delay the normal conduct and pursuit of any matter or case”). And nothing in
that provision provides the Attorney General with any authority to actually countermand, direct,
or supervise those significant decisions.
Fifth, and finally, the Regulations expressly remove day-to-day supervision and provide
almost no countermanding authority for the Attorney General. Edmond, 520 U.S. at 665 (focusing
on judges’ power to “render a final decision on behalf of the United States unless permitted to do
so by other Executive officers”). The pertinent regulation in this area is the “conduct and
accountability” section in 28 C.F.R. § 600.7(b), quoted in full below:
The Special Counsel shall not be subject to the day-to-day supervision of any
official of the Department. However, the Attorney General may request that the
Special Counsel provide an explanation for any investigative or prosecutorial step,
and may after review conclude that the action is so inappropriate or unwarranted
under established Departmental practices that it should not be pursued. In
conducting that review, the Attorney General will give great weight to the views of
the Special Counsel. If the Attorney General concludes that a proposed action by
a Special Counsel should not be pursued, the Attorney General shall notify
Congress as specified in § 600.9(a)(3).
Id. § 600.7(b). This provision, reduced to its essence, leaves the Attorney General a very slim
route to countermand a decision by the special counsel, but only when the decision is “so
inappropriate or unwarranted under established Departmental policies”; only after the Attorney
General has given—as a mandatory matter—“great weight to the views of the Special Counsel”;
and subject to a strict congressional notification requirement that mandates the Attorney General
notify Congress of his “countermanding” decision at the conclusion of the investigation. Id.
§ 600.7(b); id. § 600.9(a)(3) (requiring Attorney General to describe and explain to Congress
“instances” in which he concluded “that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental practices that it should not be
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pursued”). It is hard to see how this amounts to any meaningful direction or supervision. And it
certainly does not mean that the Special Counsel lacks the power to render final decisions on behalf
of the United States. Edmond, 520 U.S. at 652.
In sum, this framework does not lend itself to a finding that Special Counsel Smith’s “work
is directed and supervised at some level” by the Attorney General—unless the “at some level”
qualifier in Edmond is read in an exceedingly broad way. 520 U.S. at 663.
iii. The limitations on the Attorney General’s power to remove the Special
Counsel support principal status under Edmond but maybe not under
Morrison.
The Court now turns to the Attorney General’s power to remove Special Counsel Smith.
“The power to remove officers at will and without cause is a powerful tool for control.” Edmond,
520 U.S. at 663. This element features prominently in Edmond, which relied heavily on at-will
removal in finding inferior-officer status, but it also appears in Morrison, where the Supreme Court
classified an independent counsel as an inferior officer even without at-will removal. Morrison,
487 U.S. at 671, 691–92 (referring to 28 U.S.C. § 596(a)(1), and concluding that the Act’s “good
cause” removal provision did not “impermissibly burden[] the President’s power to control or
supervise the independent counsel”).
The particular removal provision in the Special Counsel Regulations reads as follows:
The Special Counsel may be disciplined or removed from office only by the
personal action of the Attorney General. The Attorney General may remove a
Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest,
or for other good cause, including violation of Departmental policies. The Attorney
General shall inform the Special Counsel in writing of the specific reason for his or
her removal.
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28 C.F.R. § 600.7(d). “Good cause” is a far-reaching term that is difficult to define. See Concord
Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613. What is clear, however, is that the Regulations
do not afford the Attorney General “at will” removal power.58
So what to make about the removal limitations in this case? On this point, the Court agrees
with the United States District Court in Concord Management that the Special Counsel
Regulations afford “more substantial protection against removal, and thus risk rendering him a
principal officer,” for the reasons stated in that decision and also referenced above. Concord
Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613–14 (citing cases). The Court need not expound
on the analysis further except to underscore the Supreme Court’s strong emphasis on at-will
removal as a “powerful tool for control.” Edmond, 520 U.S. at 664 (citing Bowsher, 478 U.S. at
727; Myers, 272 U.S. 52 (1926)). But of course, Morrison deemed the independent counsel an
inferior officer despite a good-cause removal restriction—albeit in the context of a multi-factored
approach that did not purport to delineate the “line” between principal and inferior officers. 487
U.S. at 671. And so, while it seems the absence of at-will removal is a key feature that—when
combined with the absence of any meaningful supervision or countermanding authority—likely
could transform Special Counsel Smith into a principal officer, the Court holds off on that view to
allow whatever evaluation of this topic may be conducted by higher courts.
iv. The possibility of a future rescission of the Special Counsel Regulations
to create at-will removal does not change the Appointments Clause
inquiry under current law.
There is one final issue to discuss as relates to removal. It concerns the Special Counsel’s
fall-back position that none of the removal limitations in the Regulations pose an impediment to
inferior-officer status, because the Attorney General can rescind or amend the Regulations at will
58
United States Attorneys are removable at will. 28 U.S.C. § 541(c).
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(and without notice-and-comment), or can amend or revoke the Appointment Order. In a nutshell,
the submission is as follows: evaluate the constitutional status of the Special Counsel’s position in
accordance with the extant regulatory framework, as a matter of law, but if the removal issue gets
too sticky, customize that framework and consider the matter under a hypothetical future scenario
where the regulation as it stands today (with its removal restrictions) does not exist [see ECF No.
405 pp. 11–12; ECF No. 647 pp. 151–52]. In other words, rely on the Regulations for some things,
but discard or amend them at least partially should they cast into doubt the Special Counsel’s
inferior-officer status.
This regulatory cherry-picking seems questionable as a means to resolve the inferior-
principal Appointments Clause question, although the Court admits of uncertainty in this regard,
and some courts have accepted the revocability piece as “crucial” in permitting an inferior-officer
designation in similar contexts. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 615
(quoting In re Sealed Case, 829 F.2d at 56)). Of course, regulations can be amended subject to
ordinary legal principles and any applicable restraints. But regulations have the force of law so
long as they remain operative, which they are here. Nixon, 418 U.S. at 695 (“So long as this
regulation is extant it has the force of law.”) (citing Accardi, 347 U.S. at 265); see Dulles, 354 U.S.
at 372 (describing Accardi as supporting notion that “regulations validly prescribed by a
government administrator are binding upon him as well as the citizen . . . even when the
administrative action under review is discretionary in nature”). The question, then, is not whether
regulations can be rescinded or amended; they can be. Rather, the question is whether Special
Counsel Smith is a principal or inferior officer under the Appointments Clause. And that inquiry,
it seems to this Court, must operate on the basis of extant law (a point on which the Special Counsel
otherwise agrees)—not on some possible future material change to the removal limitations that
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has not happened (and that frankly has not happened since the Regulations came into existence in
1999). If the matter were otherwise, the practical result becomes one of “regulatory shielding”
almost, in a figurative sense; an officer without authority to act as a principal officer exercises a
principal-officer role, but no means exist to judicially test that constitutional noncompliance
because the reviewing court—despite finding principal status in the present tense—must suspend
reality and reject the challenge on the basis of something other than the operative regulations. Such
slipperiness would not be permitted if the officer were acting pursuant to statute; the court would
review the extant law in a fixed manner, as is normally the case in Appointments Clause challenges
with statutory law, not through shifting regulations or appointment orders untied to statutory
authority. All of this simply underscores the need for Congress to enact “Law” in conformity with
the Appointments Clause. Art. II, § 2, cl. 2.
v. The Special Counsel’s defined jurisdiction and tenure present a mixed
and candidly unhelpful picture.
The final component of the Court’s inferior-officer analysis concerns Special Counsel
Smith’s jurisdiction and tenure. While Edmond did not stress these features, the Morrison court
considered them in reaching its inferior-officer conclusion. Morrison, 487 U.S. at 672 (finding
the Independent Counsel’s office was “limited in jurisdiction” and “limited in tenure”). What they
yield here is muddled and likely not dispositive.
Special Counsel Smith’s jurisdiction is described in a factual statement in the Appointment
Order.59 His jurisdiction is thus “limited” in the manner described by the Attorney General—as
59
Order No. 5559-2022 (“The Special Counsel is further authorized to conduct the ongoing
investigation referenced and described in the United States’ Response to Motion for Judicial
Oversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC
(S.D. Fla. Aug. 30, 2022) (ECF No. 48 at 5–13), as well as any matters that arose or may arise
directly from this investigation or that are within the scope of 28 C.F.R. § 600.4.”). 28 C.F.R.
§ 600.4(a) (adding authority to investigate and prosecute perjury, obstruction of justice, destruction
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compared, for example, to a United States Attorney with jurisdiction to investigate any violation
of federal criminal law throughout a designated federal district. But the Special Counsel’s powers
within his jurisdiction are exceedingly broad, indeed as broad as those possessed by a United States
Attorney. See Robert H. Jackson, U.S. Att’y Gen., Address at the Second Annual Conference of
United States Attorneys: The Federal Prosecutor 2 (Apr. 1, 1940) (referencing the might and
discretion of prosecutors and their ability to “strike at citizens, not with mere individual strength,
but with all the force of government itself”). And in some degree, the Special Counsel’s powers
are arguably broader than a traditional United States Attorney, as he is permitted to exercise his
investigatory powers across multiple districts within the same investigation. So is he really
exercising “limited” jurisdiction? And what is the “unlimited” jurisdictional benchmark to which
his work ought to be compared? The answers are hazy. In any event, an officer’s scope of work,
even if limited, is not dispositive of the jurisdictional inquiry. As Justice Scalia said of the
independent counsel in Morrison:
As to the scope of her jurisdiction, there can be no doubt that is small (though far
from unimportant). But within it she exercises more than the full power of the
Attorney General. The Ambassador to Luxembourg is not anything less than a
principal officer, simply because Luxembourg is small. And the federal judge who
sits in a small district is not for that reason “inferior in rank and authority.” If the
mere fragmentation of executive responsibilities into small compartments suffices
to render the heads of each of those compartments inferior officers, then Congress
could deprive the President of the right to appoint his chief law enforcement officer
by dividing up the Attorney General’s responsibilities among a number of “lesser”
functionaries.
Morrison, 487, U.S. at 718 (Scalia, J., dissenting).
of evidence, and intimidation of witnesses, along with authority to conduct appeals out of matters
“investigated and/or prosecuted”). As noted supra, the Appointment Order also authorizes Special
Counsel Smith to investigate and prosecute federal crimes arising from an unrelated electoral
matter. Order No. 5559-2022. That prosecution is the subject of a separate proceeding in the U.S.
District Court for the District of Columbia.
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As to tenure, while it is true that Special Counsel Smith’s position will end “[a]t the
conclusion” of his “work,” see 28 C.F.R. § 600.8(c), whenever that happens, that circumstance
does not equate to a “limited tenure” in a meaningful sense. Nor is it clear what the “unlimited
tenure” benchmark is, or how to measure it in real terms. What is known, however, is that the
Special Counsel has been operating since November 2022; he has established a very significant
operation in terms of staffing and resources; his direct expenditures exceeded $12.8 million as of
close to a year ago (September 2023); and nothing in the Regulations, the Appointment Order, or
the record more generally provides a concrete sunset provision for the cessation of his work.
Bringing these factors together—jurisdiction and tenure—the Court attempts to surmise
the following: (1) the Special Counsel’s jurisdiction is “limited” if “limited jurisdiction” means
something less than the general jurisdiction exercised by a United States Attorney to prosecute any
federal crime in one district (but see unlimited geographical reach in Appointment Order), and
(2) the Special Counsel’s tenure is “limited” if “limited in tenure” requires an open-ended
appointment, perhaps with a fixed number of years. 28 U.S.C. § 541 (United States Attorneys
serving four-term terms). The disposition of these factors is unclear, but they remain in the
amalgam of considerations in Supreme Court caselaw.
***
For the above reasons, the Court sees compelling reasons to reach a principal-officer
designation. But because the answer under current Supreme Court precedent is not self-evident,
and because this Court need not rely on this ground to dispose of the Appointments Clause
challenge in the Motion, the Court elects to leave the matter for future review. Of course, however,
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should it be determined that Special Counsel Smith is a principal officer, his appointment would
violate the Appointments Clause without question. Art. II. § 2, cl. 2.60
VI. Remedy for Appointments Clause Violation
The Court turns lastly to the remedial question: what to do about the absence of “Law”
authorizing Special Counsel Smith’s appointment? Defendants seek dismissal of the Superseding
Indictment, arguing that “Jack Smith lacks the authority to prosecute this action,” and that “any
actions [thus] taken by Smith are ultra vires” [ECF No. 326 pp. 1, 9, 13; see ECF No. 414 p. 10;
see ECF No. 364-1 (Meese amici)]. Special Counsel Smith opposes Defendants’ request on the
merits but fails to propose any alternative form of relief or to respond on the substance of the
remedial question [see ECF No. 374; ECF No. 432 p. 9 n.5 (“Because the Special Counsel is an
officer authorized to carry out the prosecution in this case, the Court has no reason to consider
60
The Landmark Legal amici argue that Special Counsel Smith is merely an “employee” not
subject to the Appointments Clause [ECF No. 410-2]. This position is based primarily on the view
that the Special Counsel’s position is not sufficiently “continuous” to warrant treatment as an
officer [ECF No. 410-2 pp. 11–15]. Neither party advances this contention, and the Court
disagrees with it. By any measure, Special Counsel Smith is “exercis[ing] significant authority
pursuant to the laws of the United States.” Buckley, 424 U.S. at 126. This is clear from the
operative regulations, 28 C.F.R. § 600.6, which empower him to act with the full scope and power
of a United States Attorney within his jurisdiction. Although the Supreme Court’s decision in
Lucia does emphasize continuity as a factor distinguishing officers from employees, it does so in
the context of a comparison to “occasional” and “temporary duties,” and it does not purport to
establish bright lines on the degree of continuity. 585 U.S. at 245 (comparing continuing and
permanent offices as distinct from temporary and episodic duties). Moreover, Lucia supports the
continued vitality of the Buckley test, which no one disputes is satisfied by Special Counsel Smith.
For these reasons, although Special Counsel Smith is not “permanent” in the forever sense because
his jurisdiction will conclude at whatever unspecified time it concludes, his role clearly is not the
sort of episodic, transient position that would make someone an employee under Germaine, 99
U.S. at 511–512 (holding that civil surgeons who were hired to perform exams intermittently were
employees only). The Court notes that neither the Regulations nor the Appointment Order sets a
time limit on Special Counsel Smith’s appointment, which is approaching two years in duration.
And United States Attorneys serve four-year terms, 28 U.S.C. § 541(b), which are continuing even
if not permanent.
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whether the Special Counsel action’s to date are ‘salvageable’ under the De Factor [sic] Officer
doctrine.”)].61 Because Special Counsel Smith’s exercise of prosecutorial power has not been
authorized by law, the Court sees no way forward aside from dismissal of the Superseding
Indictment. And the Special Counsel does not propose an alternative course.
“‘[O]ne who makes a timely challenge to the constitutional validity of the appointment of
an officer . . .’ is entitled to relief.” Lucia, 585 U.S. at 251 (2018) (quoting Ryder, 515 U.S. at
182–83). In such cases, which necessarily involve a “Government actor’s exercise of power that
the actor did not lawfully possess,” the proper remedy is invalidation of the ultra vires action.
Collins v. Yellen, 594 U.S. 220, 258 (2021) (collecting cases); see id. at 276–83 (Gorsuch, J.,
concurring). Invalidation “follows directly from the government actor’s lack of authority to take
the challenged action in the first place. That is, winning the merits of the constitutional challenge
is enough.” Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 241 (5th
61
Insofar as the Special Counsel may argue that additional briefing on remedy is warranted, the
Court explains the record and notes the Special Counsel’s full and fair opportunity to brief the
matter of remedy. This action presents a challenging array of issues, almost all of which are
resolutely contested; the parties require no prompting before objecting, opposing, and otherwise
engaging in “spirited” exchanges. With respect to the instant Motion itself, both the Special
Counsel and Defendant Trump submitted briefing; amicus briefs were received; and a lengthy
hearing occurred. Yet startlingly, the Special Counsel submitted nothing on the topic of the proper
remedy for the Appointments Clause issue, despite challenging dismissal as a remedy in the
Appropriations Clause context [ECF No. 374 pp. 22–23 (disputing dismissal and referencing
alternative sources of funding); see ECF No. 671 (response to supplemental authority agreeing to
supplemental briefing “on the immunity issue” and nothing more)]. Instead, counsel for the
Special Counsel remarked at the hearing, in response to a question about remedy in the
Appropriations Clause context, that: “to the extent that the Court is seriously entertaining the
notion that there is a constitutional or funding problem, I actually think it would behoove the Court
and the parties to have some additional briefing” [ECF No. 648 p. 44]. This last-minute reference
to conditional supplemental briefing at the hearing—only if the Court disagreed with the Special
Counsel on the merits—in no way signals a lack of a full and fair opportunity given to all parties
to brief their positions. Nor does it establish any prejudice from an alleged deprivation of a chance
to respond on the plainly important issue of the proper remedy for the Appointments Clause matter.
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Cir. 2022) (Jones, J., concurring).62 In light of these remedial principles—and because the Court
concludes that Special Counsel Smith’s appointment violates the Appointments Clause—the
actions of Special Counsel Smith in connection with this proceeding must be set aside.
The Supreme Court’s decision in Lucia v. SEC, 585 U.S. 237 (2018), serves as the best
comparator for remedy purposes. In Lucia, the petitioner—a business owner who had been
sanctioned by an administrative law judge for securities violations—raised a timely challenge to
the validity of the judge’s appointment. Id. at 243–44. The Supreme Court sided with the
petitioner, concluding that the judge’s appointment was constitutionally defective under the
Appointments Clause. Id. at 251. Because the judge “heard and decided [the petitioner’s] case
without the kind of appointment the Clause requires,” the Court ruled that “the ‘appropriate’
remedy for an adjudication tainted with an appointments violation is a new ‘hearing before a
properly appointed’ official.” Id. at 251 (quoting Ryder, 515 U.S. at 183, 188). In other words,
Lucia undid the unlawful action by granting petitioner a new hearing before a constitutionally
appointed officer.
Here, as in Lucia, the appropriate remedy is invalidation of the officer’s ultra vires acts.
Since November 2022, Special Counsel Smith has been exercising “power that [he] did not
lawfully possess.” Collins, 594 U.S. at 258. All actions that flowed from his defective
appointment—including his seeking of the Superseding Indictment on which this proceeding
62
Collins distinguished these situations from other separation-of-powers cases involving laws
containing improper removal provisions. 594 U.S. at 257–59. In those cases, the proper remedy
is often to sever the violative removal provision from the rest of the law. See Seila L. LLC v.
Consumer Fin. Prot. Bureau, 591 U.S. 197, 232–38 (2020); Free Enter. Fund v. Pub. Co. Acct.
Oversight Bd., 561 U.S. 477, 508–10 (2010). Full-scale invalidation is not necessary to rectify the
harm in such cases because “the unlawfulness of the removal provision does not strip” a lawfully
appointed government actor “of the power to undertake the responsibilities of his office.” Collins,
594 U.S. at 258 n.23. That is not the case here, where the matter goes to the core of appointment.
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currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because Special
Counsel Smith “cannot wield executive power except as Article II provides,” his “[a]ttempts to do
so are void” and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance this
very argument: “any actions taken by Smith are ultra vires and the Superseding Indictment must
be dismissed” [ECF No. 326 p. 9]. And the Court sees no alternative course to cure the
unconstitutional problem.
It bears noting that Special Counsel Smith’s work cannot be salvaged by the de facto officer
doctrine, which, in some circumstances, “confers validity upon acts performed by a person acting
under the color of official title even though it is later discovered that the legality of that person’s
appointment or election to office is deficient.” Ryder, 518 U.S. at 180 (citing Norton v. Shelby
County, 118 U.S. 425, 440 (1886)).
For two reasons, that doctrine does not apply here.63 First, the doctrine is designed to
address “technical defects in title to office.” Ryder, 518 U.S. at 180 (internal quotations marks
omitted); see Nguyen v. United States, 539 U.S. 69, 77–78 (2003). Here, the problem is no mere
“technical defect”—instead, the problem is the absence of a statutorily created office to fill in the
first place. As the Supreme Court has made clear, “there can be no officer, either de jure or de
facto, if there is no office to fill.” Norton, 118 U.S. at 441. Second, the de facto officer doctrine
has not been applied in cases, like this one, where a litigant raises a timely constitutional challenge
to an officer’s appointment. See Ryder, 539 U.S. at 182–83 (“We think that one who makes a
63
The de facto officer doctrine was covered noncommittally in the Landmark Legal amici’s brief
[ECF No. 410-2 pp. 23–24]. The Special Counsel offered a non-response in a footnote: “Because
the Special Counsel is an officer authorized to carry out the prosecution in this case, the Court has
no reason to consider whether the Special Counsel’s actions to date are ‘salvageable’ under the De
Factor [stet] Officer doctrine” [ECF No. 432 p. 9 n.5].
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timely challenge to the constitutional validity of the appointment of an officer who adjudicates his
case is entitled to a decision on the merits of the question and whatever relief may be appropriate
if a violation indeed occurred.”); Lucia, 585 U.S. at 251. “Any other rule would create a
disincentive to raise Appointments Clause challenges” in the face of questionable appointments.
Ryder, 539 U.S. at 183; see Lucia, 585 U.S. at 251 n.5. Because Defendants timely raised their
constitutional challenge to Special Counsel Smith’s appointment, and because there can be no
valid officer without a valid office, the Court sees no basis to resort to the de facto officer
doctrine.64
APPROPRIATIONS CLAUSE DISCUSSION
The Court turns next to Defendants’ Appropriations Clause challenge [ECF No. 326 pp. 9–
14].65 Since its inception, Special Counsel Smith’s office has been funded by “a permanent
64
The Supreme Court’s decision in Off. of United States Tr. v. John Q. Hammons Fall 2006, LLC,
144 S. Ct. 1588, 1595 (2024), is not to the contrary [See ECF No. 648 pp. 42–43]. That case
involved how to remedy a “limited” Bankruptcy Clause problem flowing from a federal
bankruptcy statute—not the constitutionality of an officer’s appointment under the Appointments
Clause. Id. (focusing on the “short lived and small” nature of the “constitutional problem”). More
fundamentally, that case does not detract from the principle that “the nature of the violation
determines the scope of the remedy.” Id. (quoting Swann v. Charlotte-Mecklenburg Bd. of Ed.,
402 U.S. 1, 16 (1971)). Here, for all of the reasons stated, the only appropriate remedy for the
preserved constitutional challenge under the Appointments Clause—a challenge that implicates
separation of powers—is invalidation of the proceeding.
65
Defendants have Article III standing to raise their Appropriations Clause challenge. The
Supreme Court has recognized that standing exists in “cases in which individuals sustain discrete,
justiciable injury from actions that transgress separation-of-powers limitations.” Bond v. United
States, 564 U.S. 211, 224 (2011); Collins, 594 U.S. at 245. Violations of the Appropriations Clause
are one such example. See United States v. McIntosh, 833 F.3d 1163, 1173–74 (9th Cir. 2016)
(holding that appellants “ha[d] standing to invoke separation-of-powers provisions of the
Constitution”—there, the Appropriations Clause—“to challenge their criminal prosecutions” prior
to conviction); see United States v. Stone, 394 F. Supp. 3d 1, 19 n.13 (D.D.C. 2019). To the extent
that Special Counsel Smith challenged Defendants’ standing to raise this argument in his
Opposition or attempted to cast the challenge as a non-constitutional claim, he declined to stand
by those contentions at the hearing [ECF No. 648 pp. 46–48].
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indefinite appropriation . . . established within the Department of Justice to pay all necessary
expenses of investigations and prosecutions by independent counsel appointed pursuant to the
provisions of 28 U.S.C. 591 et seq. or other law.” 101 Stat. 1329. But as discussed above, supra
pp. 22–52, Special Counsel Smith was not lawfully “appointed pursuant to . . . other law.” 101
Stat. 1329. This means that Special Counsel Smith’s office—since November 2022—has been
drawing funds from the Treasury without statutory authorization, in violation of the Appropriations
Clause.
I. Background Legal Principles
The Appropriations Clause dictates that “[n]o Money shall be drawn from the Treasury,
but in Consequence of Appropriations made by Law.” U.S. Const. Art. I, § 9, cl. 7. This
“straightforward and explicit command . . . means simply that no money can be paid out of the
Treasury unless it has been appropriated by an act of Congress.” Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 424 (1990) (citation omitted). To pass constitutional muster, an
appropriation “need only identify a source of public funds and authorize the expenditure of those
funds for designated purposes.” CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 426
(2024) (“CFPB”).66
66
Defendants do not challenge the Indefinite Appropriation itself—only its applicability to Special
Counsel Smith [ECF No. 326 pp. 12–14]. The Court expresses some uncertainty, however, about
the legality of the purely “indefinite” nature of the appropriation, which by all accounts is uncapped
and includes no monetary threshold or other formulaic limitation. It is not clear whether that
feature, on its own, presents a constitutional defect under the Appropriations Clause. See CFPB,
601 U.S. at 425–41 (emphasizing repeatedly the “capped” nature of the CFPB’s funding scheme
in determining it complied with the Appropriations Clause); but see id. at 444 (Kagan, J.,
concurring) (identifying certain statutes that do not “designate specific sums of money”). All that
said, the limitless nature of the appropriation, standing alone, was not squarely raised in this
proceeding.
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The Appropriations Clause plays a critical role in our constitutional scheme of separated
powers. It is Congress—not the executive or judicial branches—that controls government
spending. “Any exercise of a power granted by the Constitution to one of the other branches of
Government is limited by a valid reservation of congressional control over funds in the Treasury.”
Id. at 425. As a historical matter, “Congress’s ‘power over the purse’ has been its ‘most complete
and effectual weapon’ to ensure that the other branches do not exceed or abuse their authority.”
CFPB, 601 U.S. at 448 (Alito, J., concurring) (quoting The Federalist No. 58, p. 359 (C. Rossiter
ed. 1961) (J. Madison)). See also Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33
F.4th 218, 225–232 (5th Cir. 2022) (Jones, J., concurring) (discussing in detail the historical
origins, and separation-of-powers underpinnings of the Appropriations Clause).
II. Analysis
By its terms, the Indefinite Appropriation is available only to “independent counsel[s]
appointed pursuant to the provisions of 28 U.S.C. § 591 et seq. or other law.” 101 Stat. 1329. The
Independent Counsel Act expired in 1999, meaning that Special Counsel Smith must identify
“other law” authorizing his appointment to access the Indefinite Appropriation. Both sides agree
that “other law,” for present purposes, is the collection of statutes cited in the Appointment Order
[ECF No. 648 pp. 5, 31]. For all of the reasons the Court found no statutory authority for the
appointment, supra pp. 22–52, Special Counsel Smith’s investigation has unlawfully drawn funds
from the Indefinite Appropriation.67
67
Nor do the Special Counsel Regulations serve as “other law” for purposes of access to the
Indefinite Appropriation [ECF No. 374 p. 18 (arguing that 28 C.F.R. § 600 has “the force of law”
for purposes of the Indefinite Appropriation); but see ECF No. 648 p. 31 (agreeing that “other law”
in the Independent Appropriation refers to statutory law only)].
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Having found no “other law,” the Court need not determine whether Special Counsel Smith
is the type of “independent counsel” referenced in the Indefinite Appropriation [ECF No. 326
pp. 13–14 (arguing Smith is not sufficiently “independent” to access funds)].68 Nevertheless, the
Court notes the inherent tension in the Special Counsel’s position on this issue. In the
Appointments Clause context—specifically, in arguing that he is an inferior (as opposed to
principal) officer—Special Counsel Smith emphasizes the Attorney General’s supervision and
control over his work [ECF No. 374 p. 7 n.1; ECF No. 405]. Yet in the Appropriations Clause
context, he asserts that he is sufficiently independent to draw funds from the Indefinite
Appropriation [ECF No. 374 pp. 17–18]. In other words, Special Counsel Smith contends he is
independent enough to access the funds, but not so independent to constitute a principal officer.
Perhaps he threads that needle. But at least one source suggests otherwise. In 2004, the
Government Accountability Office (GAO) approved of Special Counsel Patrick Fitzgerald’s use
of funds from the Indefinite Appropriation. Special Counsel and Permanent Indefinite
Appropriation, B-302582, 2004 WL 2213560 (Sept. 30, 2024). The GAO’s determination was
grounded in Fitzgerald’s “express exclusion . . . from the application of 28 C.F.R. Part 600 [i.e.,
the Special Counsel Regulations],” which allowed him to operate “independent of the supervision
or control of any officer of the Department.” Id. at 3.69 Contrast Fitzgerald with Special Counsel
68
Were the Court required to conduct that analysis, it is unclear precisely how “independent” an
“independent counsel” must be to draw from the Indefinite Appropriation. The Court accepts,
however, that independent counsels need not be strictly equivalent to the “Independent Counsels”
authorized by the now-defunct EGA. See Stone, 394 F. Supp. 3d at 20–22.
69
Then-Acting Attorney General James Comey directed Special Counsel Fitzgerald to exercise
his authority “independent of the supervision or control of any officer of the Department.” Letter
from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Dec. 30, 2003). In a later
letter, Comey clarified that Fitzgerald’s position as “Special Counsel” “should not be
misunderstood to suggest that [his] position and authorities are defined and limited by 28 CFR Part
600.” Letter from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Feb. 6, 2004).
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Smith, who—by the express terms of the Appointment Order and by his own admission—is subject
to the Special Counsel Regulations, and subject to the supervision and control of the Attorney
General.
As mentioned above, the Court need not decide the “independence” issue given the absence
of statutory law authorizing the appointment. But at the very least, the “independence” question
raises doubts.
III. Remedy
This leaves remedy for the Appropriations Clause violation. Defendants argue that
dismissal is the only way to cure the funding violation [ECF No. 326 p. 12; ECF No. 414 p. 9].
Special Counsel Smith opposes dismissal, asserting—without any specificity or even willingness
to engage in factfinding [see ECF No. 620 p. 3]—that “the Department could readily have funded
the Special Counsel from other appropriations that were available” [ECF No. 374 p. 25]. At the
hearing, Special Counsel Smith represented, “at a relatively high level of generality,” that DOJ
“has appropriated, at least in the 2023 appropriation cycle, over a billion dollars,” which it is
prepared to use to fund the Special Counsel’s office [ECF No. 648 pp. 41–42]. The Court need
not reach the question of remedy here, having found the Appointments Clause violation to warrant
dismissal. Supra pp. 81–85. But as discussed below, there is good reason to believe that the
Appropriation Clause violation serves as a separate, independent basis to dismiss.
“Across remedial contexts, the nature of the violation determines the scope of the remedy.”
John Q. Hammons Fall 2006, LLC, 144 S. Ct. at 1594 (internal quotation marks omitted). As far
as the Court can tell, there is no Supreme Court or Eleventh Circuit precedent that speaks directly
to this point. Given the absence of binding precedent on the issue, the Court finds instructive
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Judge Edith Jones’s concurrence in Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc.,
33 F.4th 218 (5th Cir. 2022) (Jones, J., concurring), a case involving a civil enforcement action
brought by the CFPB. Id. at 220–42.70 All American concerned whether the CFPB’s structure
violated the Constitution’s separation of powers. Id. at 220. In a per curiam opinion, the court
vacated and remanded the district court’s order in light of the Supreme Court’s decision in Seila
Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020). Id. Judge Jones concurred, writing
separately to make the case that the CFPB’s funding mechanism violated the Appropriations
Clause. Id. at 220–42 (Jones, J., concurring). Likening an unlawfully funded enforcement action
to unauthorized government action, Judge Jones advanced that dismissal was the proper remedy:
Just as a government actor cannot exercise power that the actor does not lawfully
possess, so, too, a government actor cannot exercise even its lawful authority using
money the actor cannot lawfully spend. Indeed, a constitutionally proper
appropriation is as much a precondition to every exercise of executive authority by
an administrative agency as a constitutionally proper appointment or delegation of
authority.
Id. at 242. Surveying cases in which a government actor took action without constitutional
authority, Judge Jones concluded that the appropriate remedial course was to “disregard the
government action.” Id. “[B]ecause the CFPB funds the instant prosecution using unconstitutional
self-funding, I would dismiss the lawsuit.” Id.
There is a strong, intuitive appeal to applying Judge Jones’s logic here. The Special
Counsel’s office has spent tens of millions of dollars since November 2022, all drawn
unconstitutionally from the Indefinite Appropriation. That funding has served as “the very
lifeblood that empower[ed] it to act.” Id. at 241. Perhaps, as suggested generally at the hearing,
70
Cmty. Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616, 642–43 (5th
Cir. 2022), is a related case (overruled on other grounds in CFPB), that provides helpful analysis
on remedies in the Appropriations Clause context.
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DOJ could reallocate funds to finance the continued operation of Special Counsel Smith’s office
[ECF No. 648 pp. 41–42]. This would require further development of the record. But even if this
were prospectively possible, what to make of the prior action? For more than 18 months, Special
Counsel Smith’s investigation and prosecution has been financed by substantial funds drawn from
the Treasury without statutory authorization, and to try to rewrite history at this point seems near
impossible. The Court has difficulty seeing how a remedy short of dismissal would cure this
substantial separation-of-powers violation, but the answers are not entirely self-evident, and the
caselaw is not well developed. For that reason, and given the disposition of this Order on
Appointments Clause grounds, the Court leaves the matter of funding remedy for any applicable
future review.71
CONCLUSION
Upon careful study of the foundational challenges raised in the Motion, the Court is
convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural
cornerstones of our constitutional scheme—the role of Congress in the appointment of
constitutional officers, and the role of Congress in authorizing expenditures by law.
The Framers gave Congress a pivotal role in the appointment of principal and inferior
officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in
this case or in another case, whether in times of heightened national need or not. In the case of
inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment
power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so
in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s
71
As in the Appointments Clause context, the de facto officer doctrine does not apply here. See
supra pp. 84–85.
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strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the
absence of textual authorization for his appointment. The same structural emphases resonate in
the context of the Appropriation Clause, which “embodies a fundamental separation of powers
principle—subjugating the executive branch to the legislatures power of the purse.” All American,
33 F.4th at 221 (Jones, J., concurring).
In the end, it seems the Executive’s growing comfort in appointing “regulatory” special
counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps
this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases.
Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be
explained by the relative infrequency of these types of investigations, by congressional inattention,
or by the important roles that special-counsel-like figures have played in our country’s history.
Regardless of the explanation, the present Motion requires careful analysis of the statutory
landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with
care.
The Court thus returns to where it started. The Appointments Clause is “among the
significant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So too
is the Appropriations Clause, which carefully separates Congressional control of the “purse” from
Executive control of the “sword.” The Federalist No. 78 (Alexander Hamilton). The consequences
of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice
Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not
come in a day. It does come, however slowly, from the generative force of unchecked disregard
of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate
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and unconstitutional practices get their first footing . . . by silent approaches and slight deviations
from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).
***
For the reasons set forth above, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Dismiss Superseding Indictment Based on Unlawful Appointment
and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order
[ECF No. 326].
2. The Superseding Indictment [ECF No. 85] is DISMISSED.
3. This Order is confined to this proceeding. The Court decides no other legal rights or claims.
4. This Order shall not affect or weaken any of the protections for classified information
imposed in this case or any protective orders pertaining to classified information.
5. The Clerk is directed to CLOSE this case. Any scheduled hearings are CANCELLED.
Any pending motions are DENIED AS MOOT, and any pending deadlines are
TERMINATED.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 15th day of July 2024.
_________________________________
AILEEN M. CANNON
UNITED STATES DISTRICT JUDGE
cc: counsel of record
