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July 15, 2024

Are all past and present "special counsel" prosecutions now subject to new scrutiny?

I am not an expert or even knowledgeable concerning all the legal arguments that surround the appointment of special federal counsel to prosecute various notable persons under not-so-special federal criminal law.  But I do know that former President Donald Trump is not the only person currently being prosecuted by a "special counsel," and so his lawyers are not the only one sure to be reading closely this new 93-page opinion by US District Judge Cannon.  Here is the start and a portion of the introduction from her opinion:

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.  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....

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. 

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.

My assumption is that the US Justice Department will appeal this ruling to the Eleventh Circuit, and that this case could (soon?) get to the Supreme Court.  But this Wikipedia entry reminds me that at least a half-dozen special counsel have been appointed over the last quarter century and have secured some (now-suspect?) convictions and sentences.   Most notably and most recently, I believe Hunter Biden's recent convictions on three counts following a jury trial were secured by special counsel David Weiss.  Hunter Biden's lawyers likely will need to consider raising Judge Cannon's opinon in some way in their work (perhaps even before the upcoming sentencing).  Moreover, if a past special counsel prosecution is now deemed unconstitutional, I would if there could be a basis for seeking to vacate past conviction in order to avoid legal collateral consequences and maybe even a basis for constitutional tort litigation. 

Of course, there are all sorts of barriers for anyone previously convicted to get the benefit of any new constitutional rulings, especially rules of procedure (which this seems to be).  Still, because every special counsel situation involves a high-profile matters, perhaps we should expect at least some high-profile echoes from this ruling even if it is swiftly appealed.

July 15, 2024 at 11:40 AM | Permalink

Comments

If those convicted by other and prior Special Counsel have completed serving their sentences and are no longer in custody (including Supervised Release), they would need to file a Petition for a Writ of Error Coram Nobis. While this rule may seem on its face to be procedural, it may also be jurisdictional. Without the Special Counsel, the indictment would not have been brought before a Grand Jury or existed. Arguably, this created a jurisdictional defect, which is automatically retroactive on collateral review.

Posted by: Jim Gormley | Jul 15, 2024 11:51:18 AM

I don't think Hunter has a claim----Weiss was confirmed by the Senate etc. etc. So special counsel in his case is really just nomenclature. But we'll see, and there may be some facts that gum up the analysis.

Posted by: federalist | Jul 15, 2024 11:55:40 AM

Jim -

You need to read U.S. v. Cotton (2002), which describes in narrow terms what a jurisdictional defect is. I think that such a defect is limited to a criminal statute that Congress lacked authority to enact. I'm not saying that someone can't get coram nobis relief for a defective special counsel appointment -- I'm just saying it's not a jurisdictional defect as you seem to be using the term.


Posted by: Seriously? | Jul 15, 2024 12:06:02 PM

Doug, Federalist,

Isn’t the main issue with Smith that he was not a government employee at the time of his appointment? That it created the issues with not being confirmed or the position allocated for?

Posted by: TarlsQtr | Jul 15, 2024 12:11:13 PM

I think that's right---haven't read the opinion. Feels like Hunter won't benefit, which of course, breaks my heart.

Given the assassination attempt, the Dems (Smith is a Dem) have no good options, as these cases are going nowhere.

Posted by: federalist | Jul 15, 2024 12:42:15 PM

Again, not an area of law I know at all, but it seems the lengthy opinion only somewhat briefly discusses Jack Smith's prior status as a private citizen. It does not seem like the bulk of the opinion turns on this fact alone, but this would certainly be a way to distinguish other "special counsel" like the one now prosecuting Hunter Biden. But I believe Robert Mueller was a private citizen when appointed and he secured a significant number of convictions (including Paul Manafort).

Posted by: Doug B | Jul 15, 2024 12:59:19 PM

Trump is calling on the dismissal of all the cases against him. Let's see the gnashing of teeth.

Posted by: federalist | Jul 15, 2024 1:22:32 PM

Of course, one does have to be a properly appointed govt employee to appear before the grand jury. Several prosecutions have been overturned because, for example, an SEC attorney who was cross-designated as an AUSA did not properly sign the oath card that all federal prosecutors must sign. So there's that.

Posted by: Seriously? | Jul 15, 2024 1:24:06 PM

I haven't read the order, but I don't know how you can argue with a straight face that 28 U.S.C. 515 does not authorize the hiring of special counsels.

The language is as follows: §515. Authority for legal proceedings; commission, oath, and salary for special attorneys
(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.

(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.


Now I understand the argument that this case is "too big" to assign to somebody who is not confirmed by the Senate, but that is a policy argument rather than a statutory argument.

Posted by: tmm | Jul 15, 2024 2:51:12 PM

tmm,

The amicus by Ed Meese seems convincing to me.

https://www.abajournal.com/news/article/was-jack-smiths-appointment-unconstitutional-he-has-no-more-authority-than-taylor-swift-amicus-brief-argues

Posted by: TarlsQtr | Jul 15, 2024 3:34:24 PM

tmm, read Thomas' opinion in Trump v. US. Not saying I am 100% sold, but the argument is plausible.

I would expect that Jack Smith (D) will think long and hard before he appeals this one. It's really not in the interest of his party. Trump is tying the lawfare to his assassination, and that's a compelling argument--he's been singled out etc. etc. Continuing the prosecution is a bad look, especially since, let's face it, the charges are bullshit. Asking Congress to recognize that his "electors" actually won due to the shenanigans of the left (getting rid of ballot integrity, the possibility of illegals voting etc) is not a crime and cannot be one.

Posted by: federalist | Jul 15, 2024 3:49:31 PM

federalist writes "the charges are bullshit." So secreting and refusing to return top secret national security documents and sharing them with other private citizens is "bullshit."?

Posted by: anon | Jul 15, 2024 4:14:29 PM

Yes, when compared to Hillary skating, Biden skating and the fact that the docs were completely secure in Mar-a-Lago. And it's pretty clear that he was the ultimate declassification authority---so there's that.

Posted by: federalist | Jul 15, 2024 4:21:58 PM

there you go again, Federalist: substituting whataboutism for reasoned legal argument. So you’re right at home in this blog.

Posted by: seriously? | Jul 15, 2024 4:52:28 PM

there you go again, Federalist: substituting whataboutism for reasoned legal argument. So you’re right at home in this blog.

Posted by: seriously? | Jul 15, 2024 4:52:29 PM

you know what, seriously, you're full of it. Generally speaking, a criminal is not entitled to cosmic fairness, but that general principle does not allow prosecutors to single out someone for special treatment, as has been done to Trump.

Hillary, for example, in order to evade Federal Records Act/FOIA sent/received classified emails on a private server. She destroyed evidence in the face of a subpoena. Trump had boxes in Mar-a-Lago. If anyone needed to go to jail, it would be Clinton. Biden, same f'in thing. You may be cool with double standards in prosecutions, but we certainly are not. In what sane world does Navarro go to jail, but Holder does not.

And now there's Kristen Clarke--she lied under oath to Congress. Yet, Merrick ain't gonna prosecute her. To hell with you people.

Posted by: federalist | Jul 15, 2024 5:41:46 PM

My friend got ticketed for speeding the other day (which he admits he was), and tried the old "but you didn't stop the others who were going just as fast" defense. Didn't move the cop at all who wrote up the ticket but who dis say, "tell it to the judge."

Posted by: anon12 | Jul 15, 2024 7:23:27 PM

Federalist - “poor Donald”. i’m sure that’s what Justice Blackmun would have said. 😉

Posted by: Seriously? | Jul 16, 2024 7:59:05 AM

No one here can seriously contest that the DOJ has played favorites when it comes to charges. Pathetic.

Posted by: federalist | Jul 16, 2024 9:20:47 AM

Well, Jack Smith (D) is going to appeal. Not a good idea. First of all, Smith is acting like Captain Ahab. And it just feeds into the persecution narrative. Second, the DOJ's staging of the evidence is election interference, and where is the government's misinformation squad?

Posted by: federalist | Jul 16, 2024 11:27:19 AM

Jack Smith HAS to appeal this so that the Eleventh Circuit weighs in an issue on which all other courts of appeals agree. To not appeal just because the defendant is a former (and maybe future) president would be a dereliction of duty. Not everything has to be "heads, Republicans win; tails, Democrats lose."

Posted by: Anon | Jul 17, 2024 10:20:26 AM

anon, Dems have already won a lot--are you cool with doctoring 302s? The 'rats got away with that. You cool with the laptop story suppression? You cool with the faked evidence photos that have been used in this case? Smith's lucky his not cooling his heels in a jail cell for contempt of court.

All that has to happen, anon, is that Biden allow the US Attorney prosecute.

Posted by: federalist | Jul 17, 2024 10:31:54 AM

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