Law Prof Challenges Validity of Special Counsel’s Appointment in Trump Classified Documents Case
Special Counsel Smith exercises too much independent authority, according to the brief
A legal scholar and public interest legal organization have teamed up to challenge the classified documents indictment against Donald Trump. The scholar and organization filed a March 21 brief arguing that the delegation of authority to Special Counsel Jack Smith is invalid, rendering the indictment invalid, as well.
Prof. Seth Barrett Tillman and the Landmark Legal Foundation’s brief argue Smith’s appointment is invalid because Smith exercises too much independent authority for his position as an employee.
Smith has too much independent authority
Smith’s appointment furnishes him with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”
Tillman’s brief argues this delegation of authority goes too far because only “Officers of the United States” can hold such far-reaching authority and power and Smith is a “mere ’employee'” of the United States.
According to Tillman’s brief, an employee like Smith cannot exercise the “significant authority” of a U.S. Attorney without the supervision of an Officer of the United States.
“Employees tend to carry out routine administrative tasks,” Tillman told Legal Insurrection, but “the ability to investigate, indict, and try independently” are powers far beyond “routine administrative tasks.”
While employees can try people, their independence is limited, according to Tillman.
“Assistant U.S. Attorneys, as employees, try people all the time, but they do so under the supervision of an Officer of the United States, the appointed U.S. Attorney.”
Smith’s transitory position isn’t an “office”
Tillman argues Smith is not an Officer of the United States because such an officer’s office must be continuous, and Smith’s position only exists “to resolve a particular controversy.”
“An ‘office’ in the constitutional sense is a continuous position, like the position of U.S. Attorney,” Tillman told Legal Insurrection. “Even though different people can occupy the same U.S. Attorney position in succession, the position of U.S. Attorney is permanent. Smith’s position as special counsel, however, is a one-off position designed to address one issue and then cease to exist.”
Smith is not an Officer of the United States because he does not hold an office in the constitutional sense, which must be continuous in operation. Instead, Smith is a “mere ’employee'” of the United States holding a non-continuous position.
“One issue with Smith’s appointment is that Congress created no special counsel office, yet Smith exercises ‘significant authority’ that only an ‘Officer of the United States’ can validly exercise,” Tillman told Legal Insurrection.
The government’s response is “pro forma,” erroneous
The government filed a short response to Tillman’s brief on April 4. Tillman described the government’s response as “pretty pro forma” and making “a common error by confusing continuous duties with a continuous office. The special counsel position has continuous duties but not a continuous office. The special counsel position terminates once Smith has completed his duties.”
Tillman’s brief:
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Comments
Interesting theory and choice of venue.
There’s a reason why the Senate confirms presidential USA appointments, right? All prior special prosecutors were actual US Attorneys, appointed by a president and confirmed by the Senate and then tapped to be special prosecutors during their tenure as a sitting US Attorney. Smith was a civilian lawyer, living in Europe when Biden hired him. That just doesn’t pass the smell test.
With biden, you don’t do a “smell test” — you do a “sniff test”.
I cannot use the power of the government to investigate you. I have not been invested with the authority of the government. He cannot investigate anyone without authority.
Yeah nah, all these norms only apply to people Democrats say they apply to.
When it comes to Trump all the norms are thrown out the window.
Well Smith is special. He can even use a DC grand jury to investigate crime that allegedly occurred in Florida.
Every single aspect of the multiple, simultaneous, show-trials they are putting Trump on is wrong, incorrect, un-Constitutional, unethical, criminal, or treasonous. We are witnessing the worst abuse of governmental power in history – and that includes a bevy of Caesars and Czars and lunatic African dictators.
And this all really got going with Barky. He was the start. The guy with no American sensibilities, at all, who was not eligible to even hold the Presidency, let alone his Precedency, who hated this nation with a burning third-world furor of envy and embarrassment. And so many of us knew this was how things were going to turn out. Just seeing how so many “conservatives” were scared to even raise the idea that someone born with a foreign parent might not be a natural born citizen (and he is not). People were so intently ignoring the Constitution … and Barky hated this country so much … that it was inevitable that this would be the outcome. He was allowed to get away with a new criminal or un-Constitutional act every week or two … and most of the GOP were terrified of being called “rrrraaaaacisissstsstttssss!!!!!!!”.
This is what cowardice buys.
“The idea that someone born with a foreign parent might not be a natural born citizen” is utter bullshit, without any merit at all. People are not ignoring the Constitution, you are.
0bama was a terrible president, the worst since Wilson (though the current administration rivals his). But he was eligible and was properly elected, by a large enough margin that all the Dem cheating made no difference.
You really think that a “natural born citizen” could be someone with a foreign parent? LOL. A “natural born citizen” is someone who is born in such circumstances that there is no law or rule needed for anyone to understand that that person is a citizen. For the hard of thinking, that would mean someone who is born in the country to two citizen parents – parents who are only citizens of that country. In such a case, no one would even think to ask if that child was a citizen because it would be obvious that he is – he really could not be anything but. He is a “natural born citizen”. Someone born with a foreigner as a father most certainly does not satisfy anything close to that criteria.
“without any merit at all” … Sheesh. Get over yourself.
Dude, “natural born citizen” is pretty clear and the professor has addressed it both in its day and now. You are tilting at windmills, wasting time and energy, and just being a bit silly.
It is clear and I have explained it.
Professor Jacobson’s article explains how poorly the phrase is defined in our documents. Of course, it is poorly defined because it is an expressive phrase that is understood in its clear meaning, which I explained simply enough that anyone can understand it. Anyone born to circumstances where one is unsure, save legalese printed on mountains of papers, of their citizenship (or whether they hold more than one citizenship) cannot be any sort of “natural born citizen”. A “natural born citizen” is one for which no one would ever have such questions. I don’t know why some people try so hard to not understand this. It’s something that everyone knows, deep down, to be the only reasonable definition – just as everyone understands deep sown that reciprocity is the natural foundation of the concept of “fairness”.
It is amazing how so many people seem to want to contort themselves when it comes to the phrase “natural born citizen”, as if it were the most complicated concept in goverment … when the fact is that it’s the simplest – which is the very point of the phrase. It is “natural”. Simple. Not some complicated Rube Goldberg concept of legal definitions and requirements, but the simplest of requirements that anyone should be able to easily recognize.
The Founders knew all about dual citizens and split allegiances and the like. They were very sophisticated in the concept of the nation-state and citizenship. They chose a simple phrase to express the most obvious of circumstances, and thought it all obvious enough not to have to explain it to anyone.
No, that is not what the term means, and nobody of any note has ever even advanced such a theory. Your definition is utterly without merit, and your claim that “it’s something that everyone knows, deep down, to be the only reasonable definition” is fatuous. No one “knows deep down” that it’s true, and it’s certainly not anything the founders ever contemplated.
There is no question that 0bama is a natural born citizen, or that he was genuinely elected. That doesn’t make him a better president. Wilson was a natural born citizen too, and he was even worse than 0bama.
Natural born has devolved into meaning not from a test tube.
Statute can prevent a single citizen from passing on citizenship status to a child. But there is no requirement for both parents to be citizens. But Barky’s situation was more convoluted. But Barky’s alleged dad* being a foreigner obviously did not DQ him from the presidency.
Barky’s mom couldn’t invest her son with her citizenship status by statute (at the time of Barky’s birth, statute said inheritable citizenship status required at least one of the parents to 1.) be a citizen; and 2.) to have had continuous residence in the US as a citizen for five years over a specified time period – Barky’s mom left the country before holding citizenship status for herself for the required amount of time within the specified period). This is why it was essential (if you believe Barky’s dad was a foreigner) to demonstrate he was born in the US (Hawaii). If Barky’s mom was capable of passing her citizenship status to little Barky, there would have been no need to demonstrate his birth had occurred in Hawaii. He would have inherited his mother’s citizenship status by birth, i.e., naturally. (McCain’s situation was radically unlike this, as he was born of two parents who were both able to pass their citizenship status to little Johnny, no matter where he as born. The Constitution specifies being born a citizen as a qualification for the presidency, it does not specify where that birth must occur, nor does it specify how many parents are necessary to pass their citizenship to a child, something neither Barky’s mom nor his alleged foreign dad were able to do. BTW, there are only two ways to become a citizen, by birth and by “naturalization.” The former is “natural,” the latter is a legal process and “unnatural.” “Natural born citizen” means nothing more than a person “not made a citizen by legal process,” i.e. , unnaturally. Leave it to attorneys to make this unnecessarily complex. However statute determines how even natural citizenship may be acquired, but it must include being born into the status in order for an individual to qualify for the presidency.)
*I believe the “foreign dad” story was concocted to conceal the identity of his real father, Frank Marshall Davis, a card-carrying commie agitator. Acknowledging Davis as his father would have sealed his citizenship status, but would possibly have made Barky unelectable.
Nope. Still wrong. Ann Dunham lived in the Seattle area, then the Honolulu are during the five years in question (and California, Texas and Oklahoma before that). Unquestionably U.S. territory.
There is no need to go through all the trouble of silly conspiracy theories to explain why investing Obama with authority was a mistake. The admitted facts are quite sufficient.
He is probably right on the merits. It won’t make any difference. The obsession with destroying President Trump will not be denied.
I think that the problem here is that Smith was appointed directly by AG Garland, who is the 4th ranked Officer in the USG. If he needs supervision (which all employees at least tokenly do) he would presumably get it directly from Garland. Not the least bit independent, but still supervised by a Senate confirmed Officer.
Then Garland would have to sign the indictments and court filings, or at a minimum documenting giving smith the power to do so.
I think Tollman, and many others, would argue that special prosecutors must be/are officers of the United States and Garland simply doesn’t have the unilateral authority to create ‘officers of the United State.’ Only Congress can create officers of the United States, both civil and military.
The problem is the AG cannot appoint a citizen to an office that was not created by the Congress. The Biden DoJ said they would not participate in the investigation because they did not want it to appear they were persecuting a political rival. That’s why the case was not assigned to a US Attorney or any of the appointed officers in the DoJ.
Now that the illegitimacy of the appointment is coming to light, the DoJ cannot turn around and say “oh, we are supervising him”. That, too, would run counter to the constitution since the DoJ has over 100 officers appointed by the President and confirmed by the Senate.
But why can’t Smith be a mere employee, like the AUSAs who file most of the cases for the DOJ?
As stated, he is an employee. The argument is that an employee cannot be given the responsibility of special prosecutor (he could be a staff attorney, working for a special prosecutor). The AUSAs are not mere employees, as they are appointed by the President and confirmed by the Senate, making them “officers of the United States”.
AUSA? No.. USAs are nominated by the President and confirmed by the Senate. AUSAs typically work for USAs. That’s what the A is for. AUSA means an Assistant US Attorney.
This is all part of the theory that Tillman has been arguing for nearly 20 years, that the term “officer of the United States”, or “office under the United States” refers only to someone who has been appointed by the president with the senate’s advice and consent. Elected officers, such as the president himself, are not officers of the United States, and nor are “inferior officers” whom the president appoints without senate approval.
Article II, section 2 says the president “appoint[s]…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.” This seems to make a distinction between “Officers of the United States” and “inferior Officers” (because it does not refer to the latter as “of the United States”), but it also makes it clear that some “officers” may be appointed by “Heads of Departments” if authorized to do so by Congress.
Section 4 states “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”, making a distinction between the “President” and “Officers of the United States.”
It’s clear (to me, at least) that the president is not an “Officer of the United States” both because he doesn’t/can’t appoint himself and because of the distinction made in Art. II, sec. 4. Are officers not appointed directly by the POTUS not “Officers of the United States” (and therefore not subject to the impeachment process for their removal – these lesser officers may simply be fired)? It does seem to me that there’s room for argument here, but unless I read a convincing argument, I’m inclined to agree that “officers” are not “officers of the United States” unless they’re appointed by the POTUS.
“…unless they’re appointed by the POTUS.”
Although those appointed by POTUS to offices created by Congress may not be “officers of the United States,” which may apply only to those appointed by authority direct from the Constitution. This is debatable (and I’m inclined think such officers do not qualify due to their offices being once removed from the Constitution).
I don’t believe that Jack(ass) Smith does anything that isn’t scripted for him right out the offices of the White House Counsel and DOJ liaison to the West Wing. It’s already been proven that Fani Willis, Alvin Bragg and Letitia James had plants in their offices and regular contact with Biden’s White House to coordinate and collude in their efforts. So Jack(ass) Smith is as “independent” in this matter as was that doddering old fool Robert Mueller, who had that disgusting Andrew Weissman doing all the “wet work”.
Under the Fourth Reich of the Democrats, going after Trump *is* a continuous office.
We’ve heard this before and it’s gone nowhere.
The Cinstutiution guarantees a fair and speedy rial in a court of “competent jurisdiction” which generally means where the alledged crime took place (that means Florida in this case, for anyone still asleep) bfore a jury OF YOUR PEERS which also means near where the accused LIVES, again this would mean Florida no DeeCee, and with persons local to Trump’s residence at the time the “crime” is alledged to have been committed, NOT a gaggle of local denizens if DeeCee where they are off on a different planet. hat means gummi employees in Deecee, nor street bums rounded up at some barrio, canno sit as jury on this rial.
You should read the Sixth Amendment. It takes about thirty seconds and would save you a lot of unnecessary garment-rending.
Since the documents were taken in Washington DC, it’s a suitable venue under Constitutional muster. Since the classified documents were improperly stored in Florida, that would also be a suitable venue. It doesn’t really make sense to split it into separate cases, so I doubt your contention would carry the day if Trump’s defense team chose to make that argument. Nor is it likely they could prevail on an assumption that the jury would be made up of Democrat voters in DC but a more mixed group in Florida.
Sadly, this case is an example of lack of discipline. Trump had the absolute authority to declassify the documents (there is a process that goes with doing so, since the declassification decision needs to be communicated to other elements whose documents would be affected by the decision). By failing to do so, he provided the opening for this case to be brought. Frankly, I think he’s toast–but the typical punishment for such a crime is not too onerous (just ask Dave Petraeus, among others).
Except that when the documents were ordered shipped from the WH to FL, Trump was still President, and had plenary declassification authority. At that time, there was no one in the USG who had the legal power to deprive him of a single document, classified or not, because the Executive Branch derived its power from his office, where he held all Executive power. If he wanted to ship classified documents to Tehran, the Constitutional remedy is Impeachment.
It was really only when the documents got to FL, and Trump was no longer President, that his possession of them became even arguably problematic. The (convoluted, Lawfare) argument is that they became illegal for Trump to possess after he left office (or the Biden WH revoked his security clearances).
Which is a long way of saying that jurisdiction is proper in FL and venue proper in the EDFL, because that’s where the alleged illegal acts were committed. They are not proper in DC, because no alleged (in this case) criminal acts were committed there.
Let me add that there is a distinct possibility that this issue may sink the case. It turns out that most of the grand jury hearings were conducted in DC, under the supervision of Judge Howard. This was convenient for Deputy Special Counsel Jay Bratt, whose day job is being the branch chief of the Counterintelligence and Export Control Branch (CECB) of the DOJ, it is the sister unit of the FBI’s Counterintelligence Division (CD), where the skulduggery against Trump, and in favor of Clinton, was run (much by ubiquitous CD branch chief Peter Strzok). It should be noted that prior to the MAL raid, pretty much the only documents that the DOJ/FBI knew that Trump had were in the binder formally ordered declassified his last full day in office – that Implicated both organizations in perfidy, misfeasance, and malfeasance, as a result of two SC and an IG investigations. Coincidental that CECB and CD were involved in the MAL raid?
Getting back to the case, Jay Bratt has been running this case, since well before the DC Grand Jury was empaneled. It was he who requested documents marked classified from Trump, who refused their request for an extension of time to respond or rolling production, etc. It was he who signed the MAL search warrant and original indictment. And, it very much looks like he was the one running the Grand Jury in DC. That’s where his office is. Having the case in FL is probably a big pain for him.
In any case, a problem for him is brewing. The bulk of the Grad Jury testimony was apparently taken in DC. The Defendants have requested access to it. It’s current being blocked by the DC Judge (Howard). The FL Judge (Cannon) is not amused. Apparently things are getting heated between Judge Cannon on the one side, and Smith and Bratt on the other. My bet right now is that she gives the prosecution the choice of either opening up the DC Grand Jury transcripts to the defendants, or lose the testimony heard by it. They can’t afford the latter… We shall see.
“Sadly, this case is an example of lack of discipline. Trump had the absolute authority to declassify the documents (there is a process that goes with doing so, since the declassification decision needs to be communicated to other elements whose documents would be affected by the decision). By failing to do so, he provided the opening for this case to be brought. Frankly, I think he’s toast–but the typical punishment for such a crime is not too onerous (just ask Dave Petraeus, among others).”
Actually, no. Those rules apply to everyone else, but not a sitting President. The documents are his to do with, as he pleases. And if the President wanted to hand over classified documents to the Soviet Premier, nothing anyone could do about it. He was operating within his Article III Power.