I filed a amicus brief In United States against Trump (S.D. Fla.), one of two prosecutions brought against former President Trump by Special Counsel Jack Smith. This brief, filed on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation, argues that Special Prosecutor Jack Smith is not an “officer of the United States.” At most, his position is properly characterized as a mere “employee.” And as a mere “employee,” Smith cannot exercise the broad judicial powers of a United States attorney. If our position is correct, then this prosecution may continue, if at all, only under the routine supervision of the politically responsible United States Attorney for the Southern District of Florida.
After our brief was accepted by the Court, the following order was issued:
The amicus brief [410-1] is accepted for consideration by the Court. If the Special Prosecutor or Defendants wish to file a separate response to the amicus brief, they may do so by April 4, 2024, in accordance with local rules.
Here is the introductory section of the brief:
Disputes over offices and officials generally arise from two types of questions. First, there are procedural questions: How is the position created, how is a person appointed to that position, and how can the official’s tenure be terminated? Second, there are substantive questions: What is the scope of the official’s powers, and to what level of supervision or direction is the official subject? United States against Trump involves both aspects of Special Prosecutor Smith’s role.
Procedurally, the position of Special Prosecutor Smith was (allegedly) created by the Attorney General to resolve a particular dispute. See 28 CFR § 600.1. And this special prosecutor position will cease to exist once the investigation is completed. 28 CFR § 600.8(c). The duties of this ephemeral position were and are only “temporary” rather than “continuous and permanent”. Lucia v. SEC585 US 237, 245 (2018) (cit United States vs. Germaine99 US 508, 511–12 (1879)).
Furthermore, based on long-standing precedent and scrutiny, a position that is not “continuous” is not an “office” at all. ID. At most, Smith’s temporary position is properly characterized as a mere “employee.” Buckley vs. Valeo, 424 US 1, 126 n.162 (1976). Special Prosecutor Smith does not hold an “office” and is not an “officer of the United States.” To paraphrase Justice Scalia Morrison dissent, this employee came as an employee.
In essence, the regulations give the special prosecutor “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 CFR§600.6. A United States Attorney is considered an inferior “United States Officer.” United States versus United States. Fun, 218 F.3d 19, 25 (1st Cir. 2000). However, a mere “employee” cannot exercise the broad judicial powers of a United States Attorney.
Both procedurally and substantively, the prosecution actions taken by Special Prosecutor Smith are ultra vires the Special Prosecutor Regulation. Likewise, Smith’s exercise of the powers of an “Officer of the United States” in his capacity as an employee of the United States violates the Appointments Clause jurisprudence of the Supreme Court. While the past actions of Smith and his subordinates may be recoverable under the De Facto Officer Doctrine, his future actions may continue under current regulations, if at all, only under the normal supervision of the politically responsible United States Attorney for the Southern District of Florida.
As I said before, there is always more “officer stuff” to write about.
I am grateful for the assistance of my co-counsel, Michael O’Neill of Landmark Legal Foundation and Michael A. Sasso of Sasso & Sasso, Pennsylvania in Orlando.