Left: Special Counsel Jack Smith speaks about an August 2023 indictment of former President Donald Trump at a DOJ office in Washington (AP Photo/J. Scott Applewhite, File). Center: President Joe Biden delivers remarks on lowering the cost of prescription drugs, at NHTI Concord Community College, Tuesday, Oct. 22, 2024, in Concord, N.H. (AP Photo/Steven Senne). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
In something not entirely unlike an “all hands” call to action, Republican attorneys general from 20 different states are now trying to convince a federal court of appeals that the Mar-a-Lago documents indictment against Donald Trump should remain dismissed.
The 33-page amici curiae — or friends of the court — filing was submitted late Friday with the U.S. Court of Appeals for the 11th Circuit. The motion purports to represent the states of Florida, Iowa, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, And West Virginia.
In yet another iteration of a sustained legal pile-on, the brief argues special counsel Jack Smith was appointed to his position “unlawfully” — in violation of strong, time-honored executive, or presidential, authority.
“[U]nlike a U.S. Attorney, Smith faces next-to-zero presidential accountability,” the brief reads. “He was not appointed by the President and confirmed by the Senate. Nor is he subject to the plenary supervision of an official who was.”
The GOP elected officials say their constitutional argument is distinct from extant similar arguments — including those already made by the defense — that have to do with the Appointments Clause (and the closely-related Appropriations Clause.)
“Smith acted under regulations that authorize the exercise of core executive power unguided by the plenary control of the President or any principal officer accountable to him,” the motion reads. “Because those regulations violate Article II of the Constitution, Smith’s actions under them are invalid.”
As Law&Crime previously reported, including once earlier on Saturday, the amici’s arguments here are one more among many such efforts; on at least two federal dockets; and they are essentially a replay of a battle between various amici groups when the Mar-a-Lago case was being overseen by U.S. District Judge Aileen Cannon.
That fight began with Trump’s own defense citing the clauses in a February motion to dismiss. Then, right-of-center groups, law professors, and legal scholars argued against Smith’s appointment in a deluge of motions practice allowed by the district court. Oppositely, left-of-center law professors, historians, and legal scholars argued Smith was validly — and non-controversially — exercising his authority.
The lower court, of course, famously ordered a kibosh on proceedings based on that novel understanding of the Appointments Clause of the U.S. Constitution advanced by Supreme Court Justice Clarence Thomas.
The analysis offered by Thomas came in the landmark ruling where Chief Justice John Roberts issued a broad grant of presidential immunity to Trump.
Thomas was the only justice to cite the long-simmering Appointments Clause issue in an unfavorable light for the government in any of the opinions attached to Trump v. United States. The majority opinion actually lists several ways in which the appointments power inures to the executive’s benefit. Thomas was also the only justice to mention the phrase “Appointments Clause” directly.
In August, Smith filed his opening salvo in a bid to resuscitate the long-beleaguered case. Since then, the 45th president has raised the clauses in an effort to affirm the lower court’s dismissal of the case.
In the present motion, the Republican AGs are offering another separation of powers argument — though one that differs substantially from others that have previously been made before the 11th Circuit. The clauses-related arguments which have largely been essayed thus far in the case implicate the same field of constitutional theory but are not quite the same as what the attorneys general are saying here.
“[I]nherent in Article II’s vesting of the executive power in the President is the authority to control, and if necessary, remove subordinate executive officials at will,” the motion reads.
That, however, is not what Attorney General Merrick Garland purported to create when he imbued Smith with his title and power.
“Indeed, the avowed purpose of Special Counsel Smith’s appointment was to remove responsibility — and thus political accountability — for the investigations and prosecutions under his purview from the current Administration,” the brief continues.
And, the AGs argue, this precise effort to keep Smith wholly independent from the Biden administration has created something of an unconstitutional Frankenstein’s monster.
“The result: A single executive officer now unilaterally resolves massively consequential, politically fraught issues like whether to indict a former president and current presidential candidate and what position the United States will take as to whether and to what extent a President enjoys immunity from criminal prosecution,” the brief goes on. “Article II does not give the Attorney General the authority to vest the executive power in Jack Smith.”
The motion offers an analogy to make their point:
No department head in the Executive Branch has the authority to do what the Attorney General has done in the special-counsel regulations. The Attorney General may no more create a new prosecutorial unit in the Department of Justice and place it under the control of a tenure-protected special counsel than may the Secretary of Defense create a new branch of the military and place it under the control of a tenure-protected branch chief. That would remain true even if the reason the Secretary did so was that the President had a conflict of interest because, for example, his son was a member of that branch deployed in a combat zone.
“It makes no difference if the President acquiesced in the relevant regulations at the time they were promulgated,” the brief continues. “A President is of course free to take a hands-off approach ‘in his dealings with subordinates,’ but he may not ‘bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.’ The Attorney General cannot do so either.”
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