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>>140991, >>141053, >>141054, >>141055 pb

Opinion | Jack Smith Isn’t a Special Counsel ‘by Law’
Michael B. Mukasey

Federal prosecutors must be duly appointed and confirmed by the Senate. He fails both tests.

There’s good news and bad news for special counsel Jack Smith. The good news is that he may not have to confront the thorny issues stemming from the Supreme Court’s presidential immunity decision. The bad news is that the good news may put him out of a job. That result would follow from a finding either that there is no legal authority for the creation of the office of special counsel, that he wasn’t appointed in compliance with the Constitution, or some combination of the two.

The Constitution’s Appointments Clause limits how executive offices can be created and how they may be filled. Before the Revolution, the king could both create and fill offices. The Constitution eliminated that power by giving Congress the authority to create offices or to authorize their creation in specific instances, and requiring the advice and consent of the Senate before the president could fill certain offices. It empowers the president to nominate and appoint “officers of the United States” not specifically provided for in the Constitution only with the advice and consent of the Senate, and only to offices “which shall be established by Law.” The Appointments Clause does allow for the appointment of officers by the president, a court or the head of a department—such as the attorney general—but, again, only when such appointment is permitted “by Law.”

Authority for appointment of the current special counsel doesn’t exist “by Law,” but rather through a set of regulations put in place unilaterally by U.S. Attorney General Janet Reno in 1999. They don’t have the force of a law passed by Congress and signed by the president, and can be changed at any time by any attorney general.

While concurring in the majority opinion on the issue of presidential immunity, Justice Clarence Thomas wrote separately to raise the question of whether any law has created the office of special counsel. He noted that Mr. Smith was appointed by the attorney general, and that Mr. Smith relies not on one but on four statutes as authorizing the office of special counsel. Justice Thomas notes that none of them refers specifically to creating such an office; that two are “generic provisions concerning the functions of the Attorney General”; that a third refers to the duties of an “attorney specially appointed by the Attorney General under law,” which suggests an attorney already appointed under some other law; and a fourth that refers to appointment of “officials . . . to detect and prosecute crimes” and appears in a chapter that creates the FBI, not one that creates prosecutors’ offices.