Thread by @rparloff

My ambitious goal here is to give an overview of the arguments for & against Trump’s motion to dismiss due to the alleged unconstitutionality of the appointment of special counsel Jack Smith. Judge Cannon is weighing the motion very seriously & will hold a hearing 6/21. ...
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The motion is supported by 2 amici, who take different tacks. A 3d amicus supports the govt.
The 1st pro-Trump amicus includes former AG Ed Meese & FedSoc co-founder Steve Calabresi. Their atty is Gene Schaerr.
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The 2d pro-Trump amicus is @SethBTillman. His atty is Josh Blackman. Tillman’s brief devotes much attention—63 references—to an 1879 SCOTUS ruling, US v Germaine, about an extortion prosecution of a surgeon who’d done piecemeal work for the govt for $2 per exam....
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@SethBTillman Interestingly, tho, the Tillman brief also concedes—while officially “tak[ing] no position” on the matter—that even if Jack Smith was unc’lly appointed, the case might not need to be dismissed, under the “De Facto Officer” doctrine. ...
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@SethBTillman Note also, as an aside, that the Meese/Calabresi amicus cites Calabresi’s own articles as authority seven times, while Tillman’s brief cites Tillman’s own work six times. (Meese/Calabresi does not cite Tillman’s work & Tillman doesn’t cite Calabresi’s.) ...
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@SethBTillman The 3d amicus, backing the govt, includes @gtconway3d, frmr Republican officials, & @tribelaw. Their atty is Matt Seligman. They cite caselaw as authority, rather than their own articles. (Below, e.g., Seligman argues that Tillman’s Germaine precedent is not, um, germane.)
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@SethBTillman @gtconway3d @tribelaw Note also that if I lose you at some point, @gtconway3d discussed very clearly many of the same issues in @lawfare when a challenge was mounted against Special Counsel Mueller’s appointment here:
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bit.ly/4bT67Pn

@SethBTillman @gtconway3d @tribelaw @lawfare The Appointments Clause requires that federal officers be either
(1) principal officers (appointed by the president & confirmed by Senate to an office created by law); or
(2) inferior officers (appt’ed by, say, a dept head, like the AG, to an office created by law).
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@SethBTillman @gtconway3d @tribelaw @lawfare There is a 3d category, too. “Mere employees,” who perform lesser functions, and are not covered by the Appointments Clause. ...
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@SethBTillman @gtconway3d @tribelaw @lawfare Trump/amici mount 3 main arguments.
1st, Trump amicus Meese/Calabresi says special counsel has to be a principal officer; since Jack Smith wasn’t confirmed by Senate, his appt is unconstitutional ...
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@SethBTillman @gtconway3d @tribelaw @lawfare 2d, Trump amicus Tillman says a special counsel is too *temporary* to constitute either a principal officer *or* an inferior officer. Ergo, he’s a mere employee exercising too much power for a non-officer, so acting unconstitutionally.
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@SethBTillman @gtconway3d @tribelaw @lawfare 3d, Trump’s own attys argue that, even assuming special counsel is an inferior officer, no statute authorizes his appt, so special counsel is unconstitutional for that reason. ...
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@SethBTillman @gtconway3d @tribelaw @lawfare All these positions have all been rejected by SCOTUS & DC Circuit. But Trump amici claim that the SCOTUS rulings are either nonbinding dictum or being “wild[ly] overread[].” They say DC Cir rulings are wrong and say (correctly) that they don’t bind Cannon (in 11th Cir).
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@SethBTillman @gtconway3d @tribelaw @lawfare Background: In 1974, in US v Nixon, SCOTUS approved the AG’s appointment of the Watergate special prosecutor, finding authority under the same statutes AG Garland invoked to appt Jack Smith.
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@SethBTillman @gtconway3d @tribelaw @lawfare In 1978 Congress enacted a controversial law later renamed the Independent Counsel Act (ICA). It allowed the AG to petition a 3-judge panel to appoint an Independent Counsel who was highly independent from the AG. ...
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@SethBTillman @gtconway3d @tribelaw @lawfare Because the ICA took the appointment power outside the executive branch, it was very controversial. Due to uncertainty about its constitutionality, AGs sometimes made simultaneous “parallel appointments” of the same IC, invoking the statutes approved in Nixon.
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@SethBTillman @gtconway3d @tribelaw @lawfare In 1987, the DC Circuit upheld the constitutionality of the AG’s appointment of IC Lawrence Walsh (Iran Contra).
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@SethBTillman @gtconway3d @tribelaw @lawfare In 1988, in Morrison v Olson, SCOTUS upheld an appointment under the Independent Counsel Act, by a 7-1 vote. The majority found the IC to be an “inferior officer” not needing Senate confirmation. Scalia dissented.
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@SethBTillman @gtconway3d @tribelaw @lawfare Scalia’s dissent has been praised, because the IC in Morrison really had no exec. branch superior. In 1997, in Edmond v US (written by Scalia), SCOTUS clarified that an “inferior officer” is one “directed & supervised at some level” by a principal officer.
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@SethBTillman @gtconway3d @tribelaw @lawfare Due to bipartisan disenchantment with ICs—too little accountability—Congress let that statute expire in 1999. Before it did, DOJ published regs allowing the AG to appoint Nixon-style special counsels again, bringing appointments back into the Exec Branch. ...
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@SethBTillman @gtconway3d @tribelaw @lawfare There’ve been 6 special counsels since: Pat Fitzgerald, John Danforth, Robert Mueller III, John Durham, Robert Hur, Jack Smith. The DC Cir upheld Mueller’s appt in 2019, finding that he was an inferior officer ...
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@SethBTillman @gtconway3d @tribelaw @lawfare The post-1999 special counsels seem to be “inferior officers,” because they answer to the AG, even if the AG, as a policy matter, exercises his powers sparingly. The AG can dismiss special counsels “for good cause,” terminate their appts at end of each fiscal year, etc. ...
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@SethBTillman @gtconway3d @tribelaw @lawfare How do Meese/Calabresi, who insist that special counsel is a principal officer who must be confirmed by Senate, get around SCOTUS’s Edmond ruling + the DC Cir’s Mueller ruling? ...
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... Meese/Calabresi say everybody’s “wild[ly] overreading” Edmond. They argue that special counsels have even more independence then US Attys, and that US Attys are “obviously” principal officers. ...
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But, as the pro-govt Seligman amicus writes below, Meese/Calabresi’s only authority for that last claim is a Calabresi article. Every court to consider the question, as well as the DOJ’s Office of Legal Counsel, have found that US Attys are *inferior* officers.
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That leaves Trump’s arguments that the statutes SCOTUS said authorized appointment of the Watergate special prosecutor in Nixon don’t really do so. The key ones are 28 USC 515 & 535.
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This gets into the weeds, but I’ll give you a feel. 18 USC § 533 says “The AG may appoint officials (1) to detect and prosecute crimes against the US. ...” Trump & Meese/Calabresi argue that “officials” doesn’t mean “officers.” ...
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But, the pro-govt Seligman brief argues that there’s two dozen statutes that do use the word “officials” to include “officers,” listing six examples in his footnotes. Plus, of course, ...
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... Judge Cannon can’t even engage in this analysis unless she boldly rules that the SCOTUS Nixon ruling was nonbinding “dictum.” And, to do that, she'd have to also boldly reject the DC Circuit’s analysis in the Mueller case, which found that Nixon *was* binding.
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How will Cannon rule? I’ll hazard a guess. She’ll extol the force & rigor of Trump/Calabresi’s textualist or originalist arguments. Then she’ll rule against them, expressing regret that her hands are shackled by SCOTUS rulings, however flawed.
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Now I’m heading off on vacation for a bit. Please consider donating to help the @lawfare team—@annabower, Ben Wittes, @TylerMcBrien, @qjurecic & me—cover the Trump Trials. À bientôt.
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