Attorney General Merrick Garland’s appointment of Jack Smith as a special counsel (SC) violated the Constitution’s appointments clause (Art. II, §2, cl.2).
Attorneys who authorize the investigation and prosecution of federal crimes must be officers of the United States because they wield significant government power. Under the clause, there are just two ways of qualifying as an officer of the United States: the appointee must either be (a) nominated by the president and confirmed by the Senate, or (b) appointed to a position that “shall be established by law” — which is to say, by a congressional statute.
Smith was not appointed under either of those procedures. To the contrary, he was appointed under the Justice Department’s SC regulations.
Attorneys who authorize the investigation and prosecution of federal crimes must be officers of the United States because they wield significant government power. Under the clause, there are just two ways of qualifying as an officer of the United States: the appointee must either be (a) nominated by the president and confirmed by the Senate, or (b) appointed to a position that “shall be established by law” — which is to say, by a congressional statute.
Smith was not appointed under either of those procedures. To the contrary, he was appointed under the Justice Department’s SC regulations.
