In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen Cannon’s ruling that Smith was illegally appointed and that he therefore lacked the authority to bring the prosecution. Soon, the Eleventh Circuit Court of Appeals will review this decision. In this post, I’ll explain the basis for the ruling and evaluate the competing legal arguments.

Background on the Appointments Clause

To understand the argument that Smith’s appointment is illegal, it’s necessary to flesh out some background on the Constitution’s Appointments Clause. The Constitution requires, as a default rule, that “Officers of the United States” must be nominated by the president and confirmed by the Senate. The Constitution allows only one potential exception to this default rule: If an officer is merely an “inferior officer,” Congress may waive Senate consent. Even then, Congress is limited to only three options for who may appoint the inferior officer: “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.”

What exactly must Congress do to “vest the Appointment” of an officer “by Law”? The clearest and most unambiguous method is to pass a statute explicitly naming the position, setting out its duties, calling it an inferior office, and identifying its appointer. That is what Congress did the first time it created inferior officers. When the First Congress established the Departments of Foreign Affairs and War in 1789, it gave both departments a “chief clerk,” who was to be “employed” within each department as an “inferior officer” as the secretary of each department was to “deem proper.”

But in recent years, many statutes have not been so specific. Sometimes Congress wishes to give the head of a department something closer to a “blank check” appointment power: the power to create an unlimited number of new positions, define their duties within certain parameters, and make appointments to fill them. For example, Congress has given the secretary of transportation a general authority to “appoint and fix the pay of officers and employees of the Department of Transportation” and to “prescribe their duties and powers.” But even these more general statutes typically echo the terminology of the Appointments Clause, using the words “appoint” and “officers.” 

Even when a statutory provision uses the word “appoint,” the larger context of where that provision appears in the U.S. Code can raise difficult questions as to the scope of the appointment power that has been granted by the statute. And that brings us to Jack Smith’s appointment. I now turn to the statutes that Attorney General Garland relied on for his authority to appoint Smith and to Judge Cannon’s opinion rejecting the government’s arguments.

Judge Cannon’s Statutory Analysis

In his order appointing Smith as special counsel and defining Smith’s duties, Attorney General Garland cited four statutory provisions as the source of his own appointment authority. In the Florida case, Trump’s defense argued that none of these provisions granted Garland such authority and that Smith was therefore without power to bring the prosecution in the first place.

This statutory argument had been raised before in the lower courts, in challenges to the appointments of other special counsels. But this argument had previously run into a problem: a potentially binding contrary Supreme Court precedent. 

In United States v. Nixon (1974), the Supreme Court reviewed the authority of a special prosecutor (a predecessor to the modern special counsel) to subpoena the president. The Court described that special prosecutor as having been appointed pursuant to the attorney general’s statutory power “to appoint subordinate officers to assist him in the discharge of his duties.” In support of the attorney general’s power to appoint special prosecutors, the Court cited the same four statutory provisions that Attorney General Garland would later cite in his appointment of Smith. 

The parties in Nixon did not focus their dispute on whether the appointment of the special prosecutor at issue was statutorily authorized. But the Nixon Court could not have reached its ultimate holding on the scope of the special prosecutor’s powers unless the special prosecutor was validly appointed in the first place. For that reason, the D.C. Circuit has treated Nixon as binding precedent, compelling that court to find that the attorney general does have statutory authority to appoint special counsels.

But Judge Cannon disagreed with the D.C. Circuit, finding Nixon not to be binding precedent on this question. As Cannon pointed out, the “issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court.” Cannon found that “[a]t most, Nixon assumed [the] antecedent proposition” of the attorney general’s appointment authority “without deciding it.” For that reason, Cannon found that she could reach the merits of the issue without being bound by Nixon.

Turning to the merits, the first two statutes cited in Garland’s appointment order deal with the attorney general’s authority to subdelegate his own powers and assign duties to those who are already employees and officers within the Department of Justice, so those statutes alone cannot authorize Smith’s appointment. 

The third cited statute 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.” The government argued that this statute grants the attorney general the authority to appoint “special attorneys,” including special counsels like Smith. But Judge Cannon rejected this argument, based largely on the past-tense phrasing of the statute. Because the statute refers to attorneys “already retained in the past sense,” Cannon held that it is “a descriptive statute about already-retained attorneys” rather than “a source of new appointment power.” Cannon bolstered this conclusion by pointing to another statute in the U.S. Code that explicitly provides the present-tense power to appoint special attorneys. But special attorneys appointed under that statute may only “assist United States attorneys,” not serve as special counsels.

The fourth statute cited by Garland’s appointment order presents the closest legal question, and it is thus the key source of purported authority to appoint a special counsel. That statute grants the attorney general the authority to “appoint officials . . . to detect and prosecute crimes against the United States.” By using the word “appoint,” the statute appears at first blush to echo the Appointments Clause. And a special counsel is an official who “prosecutes crimes,” thus falling within the plain terms of the statute’s grant of appointment power.

However, this statutory provision lies within the chapter of the U.S. Code setting out the structure and powers of the FBI, an agency that does not house special counsels. Trump and his supporting amici argued that this statute’s location in the U.S. Code and its use of the word “officials” rather than “officers” indicate that it refers only to FBI officials and agents, not special counsels. 

In her order, Judge Cannon agreed with Trump, focusing on the statute’s context and its use of the word “officials.” Cannon held that the government’s reading “would shoehorn appointment authority for United States Attorney-equivalents into a statute that permits the hiring of FBI law enforcement personnel.” 

First, Cannon reasoned that the terms “‘officer’ and ‘official,’ though overlapping in some areas, are not synonymous.” Dictionary definitions “indicate that ‘officers’ are distinguished from ‘officials’ by the ‘greater importance, dignity, and independence of their positions.” (brackets removed). And of course, the Appointments Clause itself uses the word “officers,” meaning that the word “officer” would send a clearer signal that Congress intends to vest inferior-officer appointment authority.

But this variation in vocabulary was not the deciding factor; Cannon also looked to the broader context of the statute and to its heading. Cannon noted that the remainder of the same section of the U.S. Code describes the appointment of “security and investigative employees within the FBI”—officials who are unlikely to be officers in the constitutional sense. Cannon found it implausible “that Congress intended to wedge appointment power for special counsels … into a statute concerning low- and mid-level law enforcement personnel in a statutory section governing the FBI.” And Cannon also noted that the statute’s heading—“Investigative and other officials; appointment”—lacks any indication that the statute “deals with prosecutorial power at all.” Cannon wrote that it “would be odd indeed if lawmakers—in establishing an office with the prosecutorial might of a United States Attorney—made no such mention in the statute’s heading.”

The strongest argument for the government’s view is that the word “prosecute” has an unambiguous meaning that cannot be altered by statutory context. On that view, people with the authority to “prosecute crimes” must have the authority to bring criminal charges. But Judge Cannon found that “prosecute” can plausibly be interpreted to have a narrower meaning that is more in line with the other powers listed in the same statutory section. Cannon held that “In the context of this FBI provision, and drawing from applicable dictionary definitions, the meaning of ‘prosecute’ naturally encompasses FBI employees who are engaged or involved in federal investigations and prosecutions.” Cannon found dictionary definitions from the era that the statute was first drafted which support this as a plausible reading, indicating that “prosecute” can mean to “follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally.” 

In sum, Cannon found that the context of the statute supported an interpretation that limits its appointment authority to only FBI officials, not officers like special counsels with the power to bring prosecutions. Cannon found that the statute might allow for the appointment of “FBI attorneys and other legal staff, but it also naturally encompasses non-lawyer FBI personnel involved in prosecutorial efforts to pursue and/or investigate a crime or claim, such as FBI agents, intelligence officials, and forensic specialists.” By contrast, Cannon reasoned that Congress would not have established “an office with the prosecutorial might of a United States Attorney” as one small part of a statute otherwise dealing with FBI employees.

Which side is right? In my view, this is a genuinely close question. First, Judge Cannon may well have put too much weight on the distinction between the words “officer” and “official,” given that the government has identified other statutes in which Congress appears to have granted the authority to appoint “officials” who are officers in the constitutional sense. 

And Cannon may also have placed too much weight on the location of the statute in question and its section heading, given that these details are often weak indicators of congressional intent. Indeed, the statutory language in question appears to trace back to a 1921 funding statute for the Department of Justice, which provided funding for a long list of activities including “the detection and prosecution of crimes against the United States.” By 1964, this language had been incorporated into a statute granting the attorney general the power “to appoint officials who shall be vested with the authority necessary” for “the detection and prosecution of crimes against the United States.” And unlike the current statute, that 1964 law was headed “Officials for detection and prosecution of crimes.” Thus, this statutory language predates the statute’s current heading and its current location in the U.S. Code.

Yet in the 1921 statute, the 1964 statute, and the current one, the powers surrounding the terms “prosecution” and “prosecute” all seem far different in kind from the power of a prosecuting attorney. In 1921, 1964, and most recently, the other powers that Congress placed in the same statute all had to do with either investigations, recordkeeping, or the protection of federal officials. Judge Cannon’s key point thus stands: The statute seems an odd location to find the authority to appoint federal officials possessing powers on par with U.S. attorneys.

On appeal, the most useful evidence of statutory meaning would be an analysis of plausible definitions of the word “prosecute” in the early 20th century. If this word was indeed used in government sources to refer to those assisting in prosecutions rather than bringing prosecutions themselves, then Cannon’s contextual analysis is likely correct. If, on the other hand, “prosecute” was only used in its current primary meaning of the authority to charge someone with a crime, then no amount of countervailing context can overcome that unambiguous meaning.

Is the Special Counsel a Principal or Inferior Officer?

Even if Congress did statutorily vest an appointment power in the attorney general, there is another potential problem with Jack Smith’s service. The option to vest appointments in the head of a department applies only to the appointments of “inferior officers.” If an officer is not inferior—or in other words “principal”—then Congress may not vest the appointment in a department head even if it wants to. And Trump’s supporting amici argued that special counsels like Smith are in fact principal officers who may only be appointed via presidential nomination and Senate consent.

The most important case for distinguishing between principal and inferior officers is Edmond v. United States (1997). That case held that an officer is inferior only if he is “directed and supervised” by a superior who was appointed by the president and confirmed by the Senate. In Edmond, the Court held that the officer at issue was indeed “directed and supervised” and therefore inferior. The Court identified three factors that weighed in favor of this holding: (1) the reviewability of the officer’s decisions by a superior; (2) the direct oversight of the officer by a superior; and (3) the power of a superior to fire the officer at will, without the need to show “good cause.”

The powers and protections afforded to special counsels like Smith are set out by DOJ regulations. And these regulations give special counsels greater insulation from removal than the officer at issue in Edmond possessed. As explained by the D.C. Circuit, the attorney general “has authority to discipline and to remove a Special Counsel for ‘misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.’” Thus, the attorney general does not possess the authority to remove a special counsel “at will.”

At first blush, the fact that special counsels may only be fired for “good cause” rather than “at will” might suggest that special counsels are principal officers, unlike the officer at issue in Edmond. But this analysis is complicated by the legal source of these tenure protections. The protections are provided only by regulation, not by statute. And that regulation itself can be revoked by the attorney general. 

In 2019, the D.C. Circuit held that special counsels are inferior officers, not principal. The court relied on the theory that “a supervisor’s ability to rescind provisions assuring an officer’s independence can render that officer inferior.” The court noted that the attorney general “has authority to rescind at any time the Office of Special Counsel regulations or otherwise render them inapplicable to the Special Counsel.” For this reason, the court held that a special counsel “effectively serves at the pleasure of” the attorney general and is thus sufficiently supervised so as to be an inferior officer.

But in the wake of a more recent Supreme Court decision, this reasoning has been called into doubt. In 2021, the Supreme Court decided United States v. Arthrex, which was the first Supreme Court decision ever to find that the officers under review were principal officers. The Arthrex Court rejected the theory that behind-the-scenes pressure can serve as the equivalent to formal supervisory powers. The Court explained that “such machinations blur the lines of accountability demanded by the Appointments Clause.”

Arthrex’s reasoning suggests that the mere potential to institute greater supervision in the future is not sufficient to make an officer inferior. By voluntarily tying its own hands and issuing rules that prevent the at-will removal of special counsels, DOJ leadership has chosen to “blur the lines of accountability demanded by the Appointments Clause.” Even though such rules could be revoked, the attorney general can plausibly disclaim any responsibility for the decisions that a special counsel makes so long as the rules have not yet been revoked.

Indeed, Attorney General Merrick Garland has in fact publicly emphasized Smith’s independence from control by any other superiors within the Department of Justice. By disclaiming responsibility for Smith’s choices, these statements undercut the department’s constitutional argument that the regulations providing for the special counsel’s independence should be treated as non-binding. A core value of the Appointments Clause is the “line of accountability” that the Supreme Court identified in Arthrex, and the special counsel regulations allow the attorney general to stand outside that line.

Arthrex suggests that a reviewing court should treat the regulation providing removal protection to the special counsel just as if it were a statute that the attorney general had no power to repeal. And if a reviewing court did treat it as such, this would squarely present a long-simmering question in Appointments Clause doctrine.

In Morrison v. Olson (1988), the Supreme Court held that independent counsels were inferior officers, despite their being protected from at-will removal by a (since-expired) statute. Justice Antonin Scalia vehemently dissented, and nine years later Scalia authored Edmond and included language in that opinion closely adapted from his Morrison dissent. By all appearances, Edmond rejected the reasoning of Morrison. Yet Edmond did not formally overrule Morrison, and the question remains whether Morrison is still good law.

Given the tension between Morrison and Edmond, Judge Cannon’s opinion concluded that “the answer under current Supreme Court precedent is not self-evident” as to whether Smith is a principal or inferior officer. In light of Cannon’s statutory holding, she did not need to reach this constitutional question. But if this case ends up being appealed to the Supreme Court, it might present that Court with an opportunity to finally clarify whether Edmond overruled Morrison. If Edmond did so, then Smith is likely a principal officer under Edmond and Arthrex, which would mean Congress did not have the option to vest his appointment in the attorney general and his appointment was invalid.

Conclusion

It is often hard to separate the legal issues in a case from its political context. Although Donald Trump is the beneficiary of Judge Cannon’s ruling, Democrats have been and will be the subject of other special counsel investigations. The issues that Judge Cannon grapples with in her opinion are genuinely difficult, and their resolution will have consequences extending far beyond the current Trump prosecutions. 

At its most basic, the statutory question hinges on the meaning of a single word: “prosecute.” Like many recent high-profile cases of statutory interpretation, this case pits a broader interpretation of a term standing alone against a narrower interpretation of that term when compared to the statutory company it keeps. Does the word “prosecute” always mean the power to charge with a crime, or does it indicate a less significant authority when it appears in a statutory list of otherwise investigative powers?

On appeal, it would be most helpful for scholars and amici to focus on the history and practice of how Congress has used the word “prosecute” when defining the powers of other officials. That is the best chance of determining whether Congress really did place a highly consequential appointment power in an otherwise nondescript statutory provision.

Thomas Berry is a legal fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor-in-chief of the Cato Supreme Court Review.