Special Counsel Jack Smith was not lawfully appointed

[Vambram]

Special counsel Jack Smith wasn’t lawfully appointed, can’t prosecute Trump, legal scholars say

Former President Ronald Reagan’s attorney general and two law professors who clerked for the late Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.

www.washingtontimes.com

 

[wing2000]

Based on what legal basis is this claim made?

 

[Vambram]

Please read that article and find out.
That Washington Times article does address both sides of this question.

 

[perplexed]

Wow, the related court documents are not ridiculously pathetic like the vast majority of the 60 cases claiming voter fraud

https://www.justsecurity.org/wp-content/uploads/2024/01/Just-Security-Jan.-6-D.C.-Trump-Clearinghouse-%E2%80%94-Brief-Fmr-AG-Edwin-Meese-Profs-Steven-Calabresi-Gary-Lawson-as-amici-curiae-supporting-neither-party-in-DC-immunity-appeal-Dec.-30-2023.pdf

If Jack smith does not meet the requirements they can just easily find someone that does meet the requirements,

 

[Hank77]

Special counsel Jack Smith wasn’t lawfully appointed, can’t prosecute Trump, legal scholars say

Former President Ronald Reagan’s attorney general and two law professors who clerked for the late Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.

www.washingtontimes.com

Help me out here, please. I read the article and I think the relevant information is in the first two paragraphs. However, I must be missing something because I believe recent history is not in agreement.

President Reagan’s attorney general and two law professors who clerked for Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.

Former Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson said in a 25-page filing to the Supreme Court that Attorney General Merrick Garland had no constitutional or statuary authority to appoint Mr. Smith to conduct the high-level criminal investigation of Mr. Trump because he was a private citizen and not confirmed by the Senate.

Special counsel Jack Smith wasn’t lawfully appointed, can’t prosecute Trump, legal scholars say

Former President Ronald Reagan’s attorney general and two law professors who clerked for the late Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.

www.washingtontimes.com

So here is my confusion, please correct me if my facts are incorrect.

1. Deputy Attorney General Rod J. Rosenstein appointed Robert S. Mueller III to be Special Counsel over the Russian government investigation.
2. Robert Mueller III was/is a private citizen.
3. Robert Mueller III was not confirmed by the Senate.
4. Robert Mueller III himself brought criminal charges against 34 people and organizations.

Appointment of Special Counsel

Deputy Attorney General Rod J. Rosenstein today announced the appointment of former Department of Justice official and FBI Director Robert S. Mueller III to serve as Special Counsel to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016...

www.justice.gov

Criminal charges brought in the Mueller special counsel investigation - Wikipedia

en.wikipedia.org

 

[Larniavc]

Special counsel Jack Smith wasn’t lawfully appointed, can’t prosecute Trump, legal scholars say

Former President Ronald Reagan’s attorney general and two law professors who clerked for the late Supreme Court Justice Antonin Scalia are challenging special counsel Jack Smith’s authority to prosecute former President Donald Trump, saying a private citizen can’t bring criminal charges.

www.washingtontimes.com

I’m going to stand firmly against this tree trunk and say this turns out to be another incorrect post aimed at *checks notes* anyone against Trump.

 

[perplexed]

So here is my confusion, please correct me if my facts are incorrect.

1. Deputy Attorney General Rod J. Rosenstein appointed Robert S. Mueller III to be Special Counsel over the Russian government investigation.
2. Robert Mueller III was/is a private citizen.

I am really the wrong person to ask
but Special Counsels other than Jack Smith have been confirmed by the Senate in the past to do different roles

Mueller was director of the FBI for 12 years, from September 2001 to September 2013. His was the second longest tenure for an FBI director, behind only J. Edgar Hoover. Serving under both Democratic and Republican presidents, Mueller enjoyed wide, bipartisan support from the Senate, which initially confirmed him 98-0 in 2001, and then extended his term past 10 years by a vote of 100-0 in 2011.

 

[Hank77]

Mueller was director of the FBI for 12 years, from September 2001 to September 2013. His was the second longest tenure for an FBI director, behind only J. Edgar Hoover. Serving under both Democratic and Republican presidents, Mueller enjoyed wide, bipartisan support from the Senate, which initially confirmed him 98-0 in 2001, and then extended his term past 10 years by a vote of 100-0 in 2011.

He was nominated and confirmed by the Senate to be the FBI director.
He wasn't confirmed by the Senate to be the Special Prosecutor and he had been out of government for several years working in a private law firm. Yes, he has been respected and trusted by many and has an excellent reputation however, that doesn't change the fact that a Special Counsel can be directly appointed by the Attorney General and be a private citizen.

...was appointed and reappointed to Senate-confirmed positions by presidents George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama.[2][3]

Robert Mueller - Wikipedia

en.wikipedia.org

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter,” said Deputy Attorney General Rosenstein.

Mueller was appointed just as Jack Smith has been appointed, they were not nominated to be approved by the Senate. So I think there must be some other arguments being proposed or it can't be taken seriously.

 

[perplexed]

As I understand it being confirmed by the senate to be a special Counsel is
not a thing.

John Henry Durham served as the United States Attorney for the District of Connecticut (D. Conn.) from 2018 to 2021. He was confirmed by the Senate to be the United States Attorney.

So John Durham was not an citizen when he was made Special Counsel on
October 17 2020 he was an Officer of the United States

As I understand it Mueller was not an Officer of United States when he
was made Special Counsel but he was one for 10 years

Jack Smith is not and never was an Officer of the United states

 

[Arcangl86]

So it appears that Professors Calabresi and Lawson also didn't think Mueller's appointment was legit.

As for the brief itself, I don't particularly find it compelling. The whole thing seems to be based on the premise that the Special Counsel is an "Officer of the United States" and as such the position needs to be specifically created by Congress. But there isn't much discussion of why they feel it is such a position. One of the main authorities they quote is themselves, which is never a good sign.

 

[perplexed]

So it appears that Professors Calabresi and Lawson also didn't think Mueller's appointment was legit.

As for the brief itself, I don't particularly find it compelling.

I really agree with the concept that the politicians parties should unanimously (or near unanimously) approve who has the power to bring criminal charges against them

 

[Hank77]

As for the brief itself, I don't particularly find it compelling. The whole thing seems to be based on the premise that the Special Counsel is an "Officer of the United States" and as such the position needs to be specifically created by Congress. But there isn't much discussion of why they feel it is such a position. One of the main authorities they quote is themselves, which is never a good sign.

Is this relevant? It appears to me that it would be.

National Archives Code of Federal Regulations

Displaying title 28, up to date as of 1/17/2024. Title 28 was last amended 1/10/2024

§ 600.3 Qualifications of the Special Counsel.

(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment, and to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues. A Special Counsel shall be appointed as a “confidential employee” as defined in 5 U.S.C. 7511(b)(2)(C).

 

[Arcangl86]

Is this relevant? It appears to me that it would be.

National Archives Code of Federal Regulations

Displaying title 28, up to date as of 1/17/2024. Title 28 was last amended 1/10/2024

§ 600.3 Qualifications of the Special Counsel.

(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment, and to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues. A Special Counsel shall be appointed as a “confidential employee” as defined in 5 U.S.C. 7511(b)(2)(C).

The thrust of their argument is that the position needs to have been created by statute, so any regulations wouldn't be relevant. For their interpretation to be correct though there would need to be agreement that the Special Counsel falls into the legal category of "Officer of the United States" and they haven't really shown why that should be. They also seem to be arguing that Senate confirmation to any position is enough to allow somebody to serve as SC, which to me reads as a pretty transparent way to try and disqualify only Mueller and Smith.

 

[Hank77]

The thrust of their argument is that the position needs to have been created by statute, so any regulations wouldn't be relevant

Would the Code of Federal Regulations be relevant to the other side of the argument? The side that says Jack Smith's appointment was legal and constitutional.

 

[Arcangl86]

Would the Code of Federal Regulations be relevant to the other side of the argument? The side that says Jack Smith's appointment was legal and constitutional.

It wouldn't. This is a bit wonky so my apologies. Also this is your reminder that I am not a lawyer, though I did spend some time in law school and picked up a lot.

But anyway, it wouldn't because of what the CFR is. In the US, at the federal level there are four sources of law. The Constitution, legislation passed by Congress and either signed or overridden, the common law from the courts and administrative law or regulations. The states have the same thing as well, with the complication that federal law can override state law. While there are four sources of law, they aren't all equal. There is a hierarchy. The Constitution is supreme, with legislation (including treaties, sometimes at least) being right below. Administrative law and the common law are at about the same level, and both are governed by statute and the Constitution.

This is important because of what the CFR is. The Code of Federal Regulations is a compilation of all administrative law. For the most part if a law comes out of the executive branch, it would be in the CFR. But that's where that hierarchy comes in. The amicus brief is claiming several things, which is itself not unusual. You normally throw as many things at the wall as you can and see what sticks. But the main theory is that the position of Special Counsel needs to be created as a result of specific legislation. If such legislation hasn't been passed, then the position is not a real one. The mere existence of regulations doesn't change that according to this theory. The Executive can pass regulations to govern a position, but if the position isn't authorized by legislation, then it doesn't matter because there is nothing to govern.

I haven't looked a ton into this, but I do think there is merit to the argument that any Office of the United States needs to be created by Congress. I don't believe there is merit to the argument that the position of Special Counsel is an Officer of the United States. I think that is what the key issue would be if this theory were to be tested.