“And so castles made of sand
Melts into the sea …eventually”—Jimi Hendrix
The week of January 8th was a difficult one for the Democrat lawfare strategy of criminal prosecutions of Donald Trump. On the 9th, the validity of Jack Smith’s appointment by Attorney General Merrick Garland as special counsel came under scrutiny in a closed-door1 oral argument before the U.S. Court of Appeals for the D.C. Circuit following the submission of a startling amicus curiae brief2 to the U.S. Supreme Court in late December, which was re-filed January 2nd in President Trump’s appeal of the federal January 6th-related “election interference” case brought by Smith in D.C.3 The brief, written by former Reagan Administration Attorney General Ed Meese, and law professors Steven G. Calabresi of Northwestern and Gary S. Lawson of Boston University, argues that the appointment of an attorney from outside the Department of Justice as a special counsel, with powers equivalent to a U.S. Attorney, violates the U.S. Constitution’s appointments clause requirement of advice and consent of the Senate, and so is unconstitutional.
Although the Meese, et al. brief got the attention of lawyers, its consideration by the D.C. Circuit got relatively little notice from the public and the press, because the oral argument hasn’t been made public, and the court hasn’t ruled on the issue …yet. By contrast, the story which had broken a day earlier had a “hook” of sex and corruption that made for national headlines.
On January 8th, Michael Roman, one of the defendants in the Georgia RICO case4 brought against Donald Trump and others by Fulton County district attorney Fani Willis5, filed a motion to dismiss which alleged that D.A. Willis and the special prosecutor she had appointed in the case, Nathan Wade, have been engaged in an extramarital affair, have been personally profiting from their prosecution in the case (creating a conflict of interest), and that Willis’ appointment of Wade did not comply with Georgia law.
Serious allegations have now been put forward in both the “election interference” criminal case in D.C.,6 and in Georgia, that the lead prosecutors have been unlawfully appointed, and as a consequence, their actions as prosecutors are without legal force or effect. While I won’t be commenting on the other details of Mr. Roman’s motion to dismiss which have been widely reported elsewhere, I will be reviewing here the legal arguments presented that the appointments of both of these prosecutors are fatally flawed.
Nathan Wade — Fani Willis’ Very Special Prosecutor
First, Mr. Wade… the purported “Anti Corruption Special Prosecutor.” Because —as Ms. Willis’ longtime campaign slogan reminds us— “Integrity Matters.”
Part of integrity, one would assume, is following the law.
“Under Georgia law, the district attorney was required to obtain Fulton County’s approval prior to appointing the special prosecutor to work on the case. The reason for this requirement is simple; it ensures that the district attorney cannot act unilaterally with regard to public monies and is subject to the control and supervision of the governing body, i.e., Fulton County[,] so that public has confidence in how the money is used. Undersigned counsel has found no evidence that the district attorney sought or received such approval to appoint the special prosecutor from Fulton County. This is not a mere technicality. It is a requirement the Georgia Supreme Court has held must be followed when a special prosecutor is appointed, and, therefore, a prerequisite for any special prosecutor’s work on a case including the instant case.” Motion, p.4.
Also, Mr. Roman’s motion notes:
“As has been pointed out in prior filings, the special prosecutor’s oath of office was never filed. While this may have been an oversight, it may have been purposeful—a specific attempt to shield from public knowledge the fact that the special prosecutor had, in fact, been appointed without legal authority.” Id.
“Undersigned counsel has confirmed, through open records requests and direct inquiry with representatives for Fulton County, that Willis did not seek or receive authorization to contract or pay Wade as outside counsel to serve in the capacity of a special prosecutor. Co-defendant’s counsel spoke directly with a Fulton County Commissioner who verified that Willis never got approval for Wade to be appointed or paid.” Motion, p. 11.
Specifically, Wade’s appointment violated state law, O.C.G.A. §15-18-20, which provides:
(a) The district attorney in each judicial circuit may employ such additional assistant district attorneys, deputy district attorneys, or other attorneys, investigators, paraprofessionals, clerical assistants, victim and witness assistance personnel, and other employees or independent contractors as may be provided for by local law or as may be authorized by the governing authority of the county or counties comprising the judicial circuit. The district attorney shall define the duties and fix the title of any attorney or other employee of the district attorney’s office.
(b) Personnel employed by the district attorney pursuant to this Code section shall serve at the pleasure of the district attorney and shall be compensated by the county or counties comprising the judicial circuit, the manner and amount of compensation to be paid to be fixed either by local Act or by the district attorney with the approval of the county or counties comprising the judicial circuit.
(emphasis added)
“Willis violated and failed to comply with O.C.G.A. §15-18-20(a) and she had no authority to delegate to [sic] any prosecutorial responsibilities to Wade. Since Willis never had any authority from Fulton County to contract with Wade as a special prosecutor, Wade, in kind, had no authority to investigate this case or seek an indictment. Accordingly, the indictment is fatally defective and must be dismissed.” Motion, p.19.
“Wade’s contract is not provided for by local law. Nor, based upon information and belief and responses to records requests, has it been approved or authorized by the Fulton County Board of Commissioners or any other governing authority for the County. Instead, Wade’s contract appears to be authorized solely by the District Attorney without the County being involved in such an agreement other than to supply taxpayer funds to pay Wade. And if the County had been asked to approve such a contract, it would have been unable to since it is in clear violation of the Counties ‘Code of Laws’ as well as the amounts that are typically approved for outside counsel.” Id, fn.13.
“Wade also was not authorized under Georgia law to prosecute this matter because he and Willis failed to comply with the statutes authorizing his appointment and oath of office. At the time Wade appeared before the SPGJ [special purpose grand jury], he was not a ‘duly authorized’ special prosecutor because he had no oath of office on file and was not under a valid employment contract with FCDA.” Motion, p. 20.
O.C.G.A. §45-3-8 provides that:
No officer or deputy required by law to take and file the oaths prescribed in Code Section 45-3-1 shall enter upon the duties of his office without first taking and filing the same in the proper office.
While not as serious an issue as the lack of approval from the county Board Of Commissioners, Wade performed many of the critical early steps of the prosecution before his required oath was filed, even though “under Georgia law, Wade had no more legal authority than any private member of the State Bar of Georgia to even be present in the grand jury room, let alone serve as the grand jury’s legal advisor.” Id.
“Wade, […] signed numerous subpoenas for the special purpose grand jury as a ‘special prosecutor’ with the power of the State to command appearance. Wade obtained Court orders to compel the attendance of out of state witnesses and to compel witnesses who were asserting privilege or immunity from testifying. Wade negotiated legal immunity deals on behalf of the State for certain witnesses appearing before the special purpose grand jury. Wade presented this indictment to a grand jury on behalf of the State of Georgia. Significantly, Wade has represented to counsel and this Court that he is a duly authorized special prosecutor, but all of his actions were taken without any statutory legal authority and while suffering a conflict of interest.” Motion, pp.20-21.
“[T]he Georgia Supreme Court has made clear that” the authority to appoint a special prosecutor “is expressly conditioned upon prior approval of the governing authority of the county. Wilson v. Southerland, 371 S.E.2d 382, 383 (Ga. 1988).7 Willis had no such permission. Therefore, Wade was a mere spectator who not only participated, but significantly influenced the grand jury proceedings in this case.” Motion, p.22
Wade’s appointment also violated Fulton County’s own Code Of Laws, specifically:
Sec. 102-82 - Selection of outside counsel.
(a) The selection of outside counsel to represent the county, any elected or appointed officer or official, employee, board, agency, or office (collectively, ‘county-related entities’) shall be made by the board of commissioners, upon consultation with, and recommendation from, the Fulton County Attorney.
Given the high profile of this case, how could D.A. Willis not expect at least someone on Fulton County’s Board of Commissioners to notice Mr. Wade serving as a special prosecutor without having received their approval? Or without even being presented for their approval?
Jack Smith — Off The Chart Unconstitutional
While we can at least be reasonably certain that Attorney General Merrick Garland harbors no similar romantic attachment to Jack Smith —or the Biden Administration would have extolled his diversity— his appointment of Smith suffers from a similar fatal legal flaw —what the Meese, et al. brief terms a “failure of prosecutorial authority.”
“What federal statutes and the Constitution do not allow […] is for the Attorney General to appoint a private citizen, who has never been confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel.’ That is what happened on November 18, 2022. That appointment was unlawful, as are all the legal actions that have flowed from it, including citizen Smith’s current prosecution of Defendant.” Amicus brief, pp.5-6.
The U.S. Constitution requires Senate confirmation of “officers of the United States,” similar to how the Georgia laws require that a district attorney seek the approval of the county Board of Commissioners before appointing a special prosecutor. Meese, et al. point out that Attorney General Garland could have appointed one of the existing U.S. Attorneys in the Department of Justice that had already undergone Senate confirmation as a Special Counsel …but he did not. Similarly, Roman’s motion notes that Willis appointed Wade despite there being attorneys already in her employ who had prosecutorial experience (that Wade lacked) and who could ably prosecute the case. Neither Garland nor Willis wanted to go through the proper procedure that would have given someone outside their respective departments an opportunity to question (or to disapprove) the appointment of their favored political prosecutor.
In the case of Garland’s appointment of Smith, there’s the additional problem that “the Appointments Clause requires that all federal offices ‘not otherwise provided for’ in the Constitution must be ‘established by Law,’ U.S. Const. art. II, §2, cl. 2, and there is no statute establishing the Office of Special Counsel in DOJ. The statutory provisions relied upon by DOJ and lower courts for the appointment of Special Counsels over the past half century do not authorize the creation and appointment of Special Counsels at the level of United States Attorneys.” Amicus brief, p.3.
A.G. Garland cannot, by himself, create a position in the Department’s organizational chart to wield the power of a U.S. Attorney. “[T]he Constitution does not give the President or the heads of executive departments the power to create any offices and to appoint any officers they deem appropriate. Instead, it requires that Congress first create all offices to which federal officers, superior or inferior, can be appointed. […] If no statute establishes an office, there is no office to which someone can be appointed.” Amicus brief, pp.7-8.
Garland’s appointment of Smith claims to rely on several statutory provisions: 28 U.S.C. §§ 509, 510, 515, and 533. But as the amicus brief goes on to demonstrate, none of those laws grant the Attorney General the power to create the office which Smith purportedly holds.
28 U.S.C. §509 provides that:
All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General[…]
“[T]his provision,” write the amici, “does not authorize the creation of any office. It simply says that the Attorney General can control all his subordinates in DOJ or personally assume and exercise their responsibilities.” Amicus brief, p.12.
28 U.S.C. §510 says:
The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.
While §510 “provides for shifting authority among the persons who work at DOJ […] it says nothing about who those persons are or how they got there.” Amicus brief, pp.12-13.
The amici continue, dismantling the Attorney General’s claimed sources of statutory authority, piece by piece.
28 U.S.C. §515(a) provides that:
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.
(emphasis added)
§515(a) isn’t a grant of power to the Attorney General to create an office either, although it refers to “any attorney specially appointed by the Attorney General under law” (i.e., if there already exists such a law, passed by Congress). §515(a) gives the Attorney General power to authorize his attorneys to practice outside of the judicial district where they live. And (b) of §515 provides that
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.
If there is a special assistant or special attorney appointed, they can have a title, and a salary. But this provision doesn’t give the A.G. power to create such an office, nor do any of the other provisions of law which the Attorney General cited in Smith’s appointment. Did Garland even read them, or care what they actually said?
Perhaps not. Former Clinton Attorney General, the late Janet Reno, created some DOJ regulations during her tenure which attempted to restore the authority the Department had under the expired Ethics in Government Act of 1978, which had provided for an independent counsel. Congress failed to renew that legislation when it expired in 1999, and Reno cited much the same body of law in her regulations that A. G. Garland did. If Garland’s appointment of Smith is unconstitutional, the amici argue, so are the “Reno Regulations,” which purport to give the Attorney General the power to create a Special Counsel’s office on his own, without having to go through Congress.
“The problem for the government in the case of the Reno Regulations and the Smith appointment is that those Regulations and the Smith appointment order do not contemplate ‘special counsels’ who assist U.S. Attorneys. Instead, they contemplate Special Counsels who replace U.S. Attorneys in specific cases. Smith, for example, was not appointed to assist U.S. Attorneys. He was hired as a powerful standalone officer who replaces rather than assists the functions of United States Attorneys within the scope of his jurisdiction. This is precisely the role that the Ethics in Government Act authorized for independent counsels. But that statute no longer exists, and in the absence of that statute or a similar one, there is simply no statutory office of Special Counsel to which Smith could be appointed to function as a stand-in for a U.S. Attorney.” Amicus brief, pp.17-18.
“In short, the position supposedly held by Smith was not ‘established by Law.’ […] He is acting as an officer, but aside from the specific offices listed in the statutes discussed above, there is no office for him to hold. That alone robs him of authority to represent the United States in any capacity, including before this Court.” Amicus brief, p.22.
“[…] Smith is appearing in this Court on behalf of the United States. He is prosecuting a former President, the first time that has happened in our Nation’s history. Smith is purporting to exercise at least as much power as a U.S. Attorney, and arguably more.” p.30.
That’s why, even if there were a law authorizing his appointment and creating his office, he should properly have been confirmed by the Senate, and this provides another basis for finding his appointment unconstitutional.
Without properly constituted legal authority, both Jack Smith and Nathan Wade have been pursuing criminal prosecutions against President Trump, with most of the charges brought for actions in challenging the result of the 2020 election which aren’t even crimes. But the tide is turning, and the legal foundations of these bogus prosecutions may yet be swept away.
—end—
No transcripts, press reports, or audio of the oral argument regarding the amicus briefs have yet been released.
A.K.A. a “friend of the court” brief, in which parties otherwise not involved in the proceedings can raise legal arguments that they believe the court ought to be aware of before rendering a judgment. The link is to the latest version of the Meese, et al. brief filed in the U.S. Court of Appeals for the D.C. Circuit.
I previously looked at the charges in the DC case in my two part examination of President Trump’s possible impeachment-based double jeopardy defense, a defense argument which was discussed in the publicly reported oral argument before the D.C. Circuit concerning presidential immunity.
The basis of the Georgia case is the Trump campaign’s arrangement for contingent electors to preserve President Trump’s legal options during the challenge of Georgia’s 2020 election results, as well as the phone call President Trump made to Georgia Secretary of State Brad Raffensberger urging him to look into vote fraud in the state.
I’ve since learned that Ms. Willis first name isn’t pronounced “fanny,” but rather, “fahny.” (Let’s call the whole thing off.)
Since Jack Smith brought the Mar-A-Lago documents case as well, while serving as a purported “special counsel,” his prosecution of that case is likewise in jeopardy if it turns out his appointment is unconstitutional.
“Georgia Law[…] authorizes the district attorney to employ an additional assistant district attorney compensated from the funds of the counties[…]. This authority is conditioned upon prior consent of the governing authority of each of the counties." Wilson v. Southerland, 371 S.E.2d 382, 258 Ga. 479 (Ga. 1988)