This is the second of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and two co-conspirators upon finding the Attorney General’s appointment of Jack Smith violated the Appointments Clause.  This three-part series assumes that Judge Cannon correctly decided the constitutional question and, instead, assesses the appropriateness of the Judge’s wholesale invalidation of Special Counsel Smith’s actions.

As noted in the initial post in this series, I offer four conclusions. First, the implications of Judge Cannon’s approach are wide-ranging, impacting third parties to criminal proceedings and seriously undermining certain Special Counsel investigations.  Second, the inflexible remedial rule Judge Cannon applied, precluding the exercise of remedial discretion, is grounded upon readily distinguishable Supreme Court precedents, and contravenes Buckley v. Valeo, 424 U.S. 1 (1976).  Third, Judge Cannon erred in interpreting the de facto officer doctrine, thus casting doubt upon legitimate government actions by an officeholder possessed of apparent authority.  Fourth, under a more flexible remedial approach, several factors suggest that alternatives to dismissing the indictment should have been pursued.

In Part I, I summarized Judge Cannon’s opinion and laid out the first proposition — that Judge Cannon’s wholesale invalidation of the Special Prosecutors actions has quite broad and problematic implications.  In this post, I will focus on establishing the second and third propositions stated above, essentially critiquing Judge Cannon’s opinions on its own terms.

A.  The Absolute, Inflexible Rule Requiring Invalidation of All Acts of Any Improperly Appointed Official

Judge Cannon cites an absolute rule requiring invalidation of any actions taken by a putative federal official whose appointment violates the Appointments Clause (which removes the typical equitable discretion enjoyed by District Court judges).[1] In doing so she relied on Collins v. Yellen, 594 U.S. 220 (2021), but disregarded Buckley v. Valeo, 424 U.S. 1 (1976), and the limitations set forth in Ryder v. United States, 515 U.S. 177 (1995).

1. From Buckley v. Valeo to Collins v. Yellen

In Buckley v. Valeo, the Court refused to invalidate the actions of the members of the Federal Elections Commission who had been appointed by members of Congress pursuant to the Federal Election Campaign Act of 1971, Pub. L. 92–225, 86 Stat. 3 (1972).  Indeed, the Court stayed, for thirty days, any aspects of its judgment that “affect[ed] the authority of the Commission to exercise the duties and powers granted it under the Act,” to “afford Congress an opportunity to reconstitute the Commission” or otherwise remedy the constitutional infirmity.  Buckley v. Valeo, supra, 424 U.S. at 142. 

Some years later, in Ryder v. United States, 515 U.S. 177 (1995), the Court invalidated a defendant’s criminal conviction based upon a finding of guilt by courts martial upheld by the Coast Guard Court of Military Review, because the panel included two improperly appointed adjudicators.  Justice Rehnquist did, albeit unconvincingly, address Buckley, merely noting that the Buckley plaintiffs had received relief despite the Court’s decision to otherwise make its decision effective only prospectively.  As I explained in Part 1 of this series, this was a bit of judicial sleight of hand. Remedying Appointment Clause Violations (date), supra, at note 4.[2]

Ryder can, and has, been read to declare an absolute rule requiring invalidation of all of the actions taken by an unconstitutionally appointed adjudicator.  Indeed, in Lucia v. SEC the Court appears to have done just that.  Lucia v. SEC, supra, 585 U.S. at 251.[3] However, the Ryder Court had noted that invalidating the handful of decisions in which the improperly appointed appellate adjudicators had participated did not involve “the sort of grave disruption or inequity involved” that had in the past justified giving some of its own decisions overruling its precedents only prospective effect under the Chevron v. Huson doctrine. Ryder, supra, 515 U.S. at 185 (discussing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)).[4] Notably, the consequences were much more minimal than invalidating a conviction because the trial judge had been improperly appointed. In any event, any broad rule coming out of Ryder was expressly limited to unconstitutionally-appointed adjudicatory officials — resolution of the case did not require the Court to craft a rule for all actions of all improperly-appointed federal officials, much less an unvarying, inflexible one.

Lucia was a full-throated, but quite brief, statement of the absolute rule, though again in the context of adjudicatory officials.[5]

Collins v. Yellen, 594 U.S. 220 (2021), did acknowledge as established a “rule” requiring invalidation of actions taken by an officeholder whose appointment had violated the Appointments Clause.[6] However, it did so in limiting the rule, refusing to apply the putative Ryder–Lucia rule when the constitutional problem was the unconstitutional tenure protection accorded the official.  In support of the proposition that the inflexible rule applies where the Appointments Clause problem does not hinge upon tenure protections, the Collins v. Yellen Court cited five cases: (1) Lucia v. SEC, 585 U.S. 237 (2018); (2) Stern v. Marshall, 564 U.S. 462 (2011) (bankruptcy judge’s exercise of powers exclusively assigned to Article III judges); (3) Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating the Line Item Veto Act); (4) INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative vetoes); and (5) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating Presidential seizure of steel mills).

Each of those cases is distinguishable in at least one of two respects.  First, many involve the exercise of either quasi-adjudicative powers or the legislative powers, not purely executive powers.[7] Second, none involved a situation in which the appointing officers could have created an office with the powers granted and appointed someone to the office, just not the particular person chosen.[8] I will explore each of these distinctions and their importance below.

2. Distinguishing the Precedents

a.  Distinguishing the Prosecutorial Function from Adjudicative and Legislative Functions

Why should the powers involved make a difference in determining an appropriate Appointments Clause remedy?  The Supreme Court itself has recognized the distinction, albeit in the tenure-protection context, concluding that Congress can wield far less power to grant tenure to officers exercising purely executive powers than to those exercising quasi-judicial or quasi-legislative authority.  Humphrey’s Executor v. United States, 295 U.S. 602, 628-29 (1935)(limiting the holding in Myers v. United States, 272 U.S. 52 (1926)).[9] The Court has noted that criminal prosecution is a quintessentially executive function.  See, Morrison v. Olson, 487 U.S. 654, 691 (1988); id. at 705-706 (Scalia, J., concurring).[10] Constraining the Attorney General’s selection and appointment of prosecutors interferes with this quintessentially executive function and deprives the Attorney General of the counsel of his choice.  See, id. at 695 (discussing the problem of denying the Attorney General counsel of his choice).  Thus, a robust remedy in the context of invalidating the actions of federal prosecutors has more troubling implications than invoking such robust remedies with respect to adjudicators.  Indeed, the Court in Ryder v. U.S., one of the Court’s most extensive discussions remedial issues arising from Appointments Clause violations, explicitly noted that its discussion was focused on improperly-appointed adjudicatory officials. 515 U.S. at 182-183.[11] 

Moreover, while prosecutors primarily serve as advocates, judges manage the presentation of evidence, decide questions of law, and often serve as the ultimate factfinder.  Thus, the presence of an improperly appointed judge more pervasively taints a proceeding than does the participation of an improperly appointed prosecutor.  While a prosecutor’s decision forces individuals to defend themselves (but, in the case of federal prosecutors, only after a grand jury concurs), judge’s decisions, sometime in conjunction with a jury verdict, decide legal rights and obligations as well as the resultant consequences for adjudicated violations of those rights and obligations.  The “review” of prosecutors’ decisions regarding a person’s guilt, in the form of deciding to prosecute, is de novo and not limited to the record upon which the prosecutor acted. The review of judge’s decisions with regard to the conduct of the trial and any factual determinations made is almost always limited to the record compiled and is often not de novo.[12] 

Indeed, the Supreme Court has employed similar reasoning in distinguishing officials performing adjudicatory functions from those performing prosecutorial functions in its procedural due process caselaw.  While the Court’s procedural due process jurisprudence precludes adjudicators from having an institutional financial interest in determinations such adjudicators make, e.g., Ward v. Village of Monroeville, 409 U.S. 57, 59-60 (1972), it does not require the same for officials functioning as prosecutors.  Marshall v. Jericho, Inc., 446 U.S. 238, 246-60 (1980)(civil penalties may be used to help fund the Department of Labor Office that investigated and initiated the enforcement action).[13]

Clinton v. New York, Chadha, and Youngstown Steel are even further afield from the Appointment Clause remedial question confronting Judge Cannon than Lucia, Stern v. Marshall, and Ryder. Fundamental changes in the legislative process specified in the Constitution, such as Congress and the President jointly conferring either legislative veto powers upon Congress or powers to amend legislation upon the President, are more fundamental challenges to the constitutional order than most Appointments Clause violations. That is the case all the more with respect to Appointment Clause violations that involve who department heads can choose to perform particular functions, not whether the department head can appoint anyone to perform those functions at all.  Likewise, the issue in Youngstown Steel, the President’s power to arrogate, in contravention of congressional action, the power to seize private property, is a more fundamental challenge to the constitutional order than any Appointments Clause issue raised by the Attorney General’s appointment of Jack Smith’s as a Special Prosecutor.

b.  Distinguishing the Creation of an “Office” from Selection of a Particular Occupant

A second aspect of the issue raised by Jack Smith’s appointment distinguishes the case from Lucia v. SEC and Marshall v. Stern, cited in Collins v. Yellen, as well as Ryder v. U.S., which Judge Cannon cited elsewhere in her discussion of remedies.  In none of the three cases Judge Cannon relied upon did the Constitution permit the appointing official to appoint someone else to the disputed office.  The defendants’ challenge to the validity of Jack Smith’s appointment does not really present a question regarding whether “the office” itself has been properly authorized, but rather whether a particular appointee can hold the office.  In appointing Jack Smith, Attorney General Garland, a department head, simultaneously (1) created an “inferior” office pursuant to broad statutorily-conferred authority and (2) appointed a particular person to fill that office.  Even if precedent mandates that the unconstitutional creation of an office must lead to invalidation of all the actions of any appointee to the office, selection of an ineligible person to fill a validly-created office warrants a more nuanced approach.

Unquestionably the Attorney General can create subsidiary offices within the Department of Justice and staff them with lawyers and other current Justice Department personnel.  Thus, Attorney General Garland could have designated any current lawyer assigned to the Department’s Public Integrity Division as the special counsel investigating the events of January 6, 2020, and Donald Trump’s mishandling of government records after leaving office.  In Lucia v. SEC, Marshall v. Stern, and Ryder, the appointing officials lacked such power. 

In Lucia, the officials appointing SEC ALJs simply could not have appointed anyone to those positions – the appointing officials lacked the constitutional power to appoint even “inferior” officers of the United States.  In Marshall v. Stern, Congress lacked the power to give bankruptcy judges the power Congress purportedly conferred upon them.   In Ryder, the Supreme Court addressed the consequences of the Court of Military Appeals’ determination that the appointment of the Coast Guard Court of Military Review’s civilian judges by the Department of Transportation’s General Counsel failed to satisfy the Appointments Clause of Constitution.  515 U.S. at 179-180 (citing United States v. Carpenter, 37 M.J. 291 (1993)). The General Counsel lacked the power to appoint anyone to those civilian judge positions. 

In U.S. v. Trump, the Attorney General’s undoubted authority to create special prosecutor offices and to select any number of individuals to head such offices means that the constitutional infirmity is not really the creation of the office, so much as the person the Attorney General selected to head it. 

There may be cases where the improper selection of particular person is so serious a breach that all of the appointee’s actions must be invalidated.[14] However, not every putative Appointments Clause violation will rise to that level.  For example, Assistant United States Attorneys (“AUSAs”) must, by federal statute, reside within 25 miles of the judicial district in which they serve.  28 U.S.C. § 545(a). Should all actions taken by an AUSA who resides 35 miles outside the district be invalidated, and all convictions and civil judgments the AUSA obtained be vacated?

The Appointments Clause issue in U.S. v. Trump, while more serious than the AUSA residency issue noted above, hardly seems an appropriate one for invalidating all of Jack Smith’s actions if a flexible rule could be applied.  In particular, Jack Smith’s situation is one in which a former DOJ lawyer has been appointed to prosecute the type of case he prosecuted as a DOJ lawyer (i.e., a public corruption case), pursuant to DOJ regulations, in direct consultation with the Attorney General.[15]

In short, absolute rules should not apply where a litigant’s Appointments Clause challenge really goes to the particular appointee’s eligibility to hold the disputed office, not the existence of “the office” or the extent of its powers. As we will soon see, this distinction, between challenging the officer and challenging the office, also assumes a critical role in applying the de facto officer doctrine.

One final note related to this point.  In some ways Jack Smith’s appointment raises a question of statutory interpretation, rather than one of constitutional interpretation (leaving aside the principal/inferior officer issue upon which Judge Cannon did not rely).  Congress unquestionably has the power to grant the Attorney General authority to appoint a Special Counsel, drawn either from inside or outside the Department of Justice.  The real question is whether the ambiguous provisions defining the powers of the Attorney General actually authorize the Attorney General to appoint an outsider as Special Counsel.  The “touchstone” for the resolution of that question, namely, what various statutory provisions mean, is legislative intent.  Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO ST. L.J. 1, 3 & n.1 (1999). Thus, former President Trump’s challenge to Jack Smith’s appointment is not so much about the constitutional limitations upon Congress, but congressional intent in crafting a suite of statutory provisions.

c.  Timeliness of the Challenge

One might even question the timeliness of former President Trump’s challenge to Jack Smith’s appointment.  Jack Smith was appointed on November 18, 2022.  Trump filed his motion to dismiss the “classified documents” indictment on February 22, 2024, after Jack Smith had secured an initial indictment on June 8, 2023, and the subsequent superseding indictment on July 27, 2023.  U.S. v. Trump, supra, at *2.[16]   

Glidden v. Zdanok, 370 U.S. 530, 535 (1962), suggests that a timely Appointments Clause challenge is one made “at the earliest practicable moment.” The challenge to the authority of an adjudicator is properly raised when the adjudicatory process commences; adjudicators exercise no authority before the case commences.[17]  However, for the known target of an investigation, the appropriate time to challenge the prosecutor’s appointment is when the appointment is made.  The prosecutor will not only be considering whether to seek an indictment and conducting proceedings to secure the grand jury’s return of an indictment, but engaging in other investigatory steps that may involve the interests of third parties, such as cooperating witnesses or those who enter plea negotiations.

Thus, having had an opportunity to challenge the prosecutor’s authority when the appointment was made, which would have allowed the Attorney General to cure any defect (or would perhaps have resulted in a prompt judicial resolution of the issue), the defendants should not be heard to challenge the validity of any actions taken by the prosecutor before former President Trump’s arraignment (and perhaps actions taken between the arraignment and the filing of the motion).  

The potential to undermine prosecutors’ ability to secure the cooperation of potential co-conspirators or witnesses in investigating potential criminal conduct is quite problematic.  Moreover, the potential that a prosecutor’s actions might be invalidated on Appointment Clause grounds would pose significant challenges for potential cooperators’ lawyers. They would need to thoroughly analyze the prosecutor’s authority and predict how a court might analyze a sophisticated Appointments Clause challenge based on an ambiguous statutory framework.  Note, Judge Cannon’s own analysis of the two Appointments Clause questions she addressed spanned 34 Westlaw pages (without counting her brief remedies discussion), and even at that length she determined that she could not confidently arrive at the proper resolution of one of the two Appointments Clause issues, namely, whether Jack Smith is a “principle” or “inferior” officer.

B.  Do the Limitations Upon the De Facto Officer Doctrine Require Invalidation of the Special Prosecutor’s Actions

The Supreme Court has rarely invoked de facto officer doctrine is the modern era.[18] In Ryder, one of the Court’s rare recent discussions of the doctrine, Justice Rehnquist noted that the doctrine had gone into disuse. 

Nevertheless, the doctrine continues to serve an important function.  It “is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby.”  Norton v. Shelby County, supra, 118 U.S. 441.[19] More specifically, “for the good order and peace of society [public officials’] authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined.” Id.

In Norton v. Shelby County, the Court noted that the de facto officer doctrine cannot apply when “no office” exists for the putative officeholder to occupy.  Id. The case grew out of a successful state constitutional challenge to state legislation divesting a local court of bond-issuing authority conferred on it by the state constitution and vesting the power in a body created by the legislation.  The state supreme court had invalidated the legislation because it contravened the state constitution.  Thus, the persons occupying positions on the legislatively-created board lacked authority to issue a bond because no one could have been appointed to a board exercising the disputed bond-issuing powers.  The crux of the successful constitutional challenge to the officials’ exercise of their powers lay in the powers conferred upon the offices they held, not the choice of particular persons to fill those offices. 

Giving weight to the distinction between infirmities with the creation of the “office” and the appointment of the “officeholder” fully honors the Court’s decision in Ryder.  There the Court of Military Appeals determined that the appointment of civilian judges to the Coast Guard Court of Military Review by the Department of Transportation’s General Counsel did not satisfy the Appointments Clause of Constitution.  Ryder v. U.S., supra, 515 U.S. at 184-85 (citing United States v. Carpenter, 37 M.J. 291 (1993)).  The Court of Military Appeals had nevertheless upheld the validity of the unconstitutional appointed judges’ actions under the de facto officer doctrine.  See, Ryder v. U.S., supra, 515 U.S. at 184-85. The Supreme Court held that the de facto officer doctrine did not salvage the Coast Guard Court of Military Review’s affirmance of the conviction. While there was no issue regarding the scope of authority conferred upon the office of the civilian judges of the Coast Guard Court, the official making the appointment lacked authority to appoint anyone to that position because the occupant of the office could be appointed only by the President, a department head, or the courts of law. 

As noted above, while the U.S. v. Trump defendants framed their challenge as one targeting the lack of congressional action creating “the office” to which Jack Smith was appointed, their real objection lay elsewhere.  Their objection, at its core, is that the Attorney General could not appoint Jack Smith to the office because Smith had not been a DOJ lawyer at the time of his appointment.  Nothing prevented the Attorney General from appointing any of a number of DOJ lawyers to an “office” possessing precisely the authority he has conferred upon Jack Smith.  While this is not critical in terms of the validity of Jack Smith’s appointment, it would seem highly relevant to the de facto officer question (and thus the appropriate remedy for any defect in Jack Smith’s appointment).  When the question is the appropriateness of the particular occupant of an office, courts should at least retain the flexibility, in terms of their customary remedial discretion,[20] to give greater weight to the concerns underlying the de facto officer doctrine, namely avoiding “endless confusion” regarding an officer’s authority. Particularly in the criminal context, as noted above, such “endless confusion” might seriously impair the Special Counsel’s ability to obtain cooperation and pleas from “third parties,” and pursue necessary investigatory steps.

Conclusion

As the analysis above shows, Supreme Court precedent does not require courts to abandon their traditional remedial discretion in addressing Appointments Clause violations, except in cases involving officials acting solely in an adjudicatory capacity. And even that rule is grounded upon a case, Ryder v. U.S., that both failed to seriously grapple with Buckley v. Valeo, and involved a particular factual context that at the very least did not call for a broad unyielding rule covering all Appointments Clause violations. Moreover, the de facto officer doctrine provides ample authority to uphold Jack Smith’s action. In the concluding post in this series, I will discuss how a more nuanced approach would apply to the Special Counsel situation.

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[1] See note 20 infra.

[2] See my observations on his attempt to distinguish Buckley v. Valeo in footnote 4 of Part I of this series. 

[3] That said, Ryder really required the Supreme Court to ascertain whether the U.S. Court of Military Appeals had, in effect, abused its discretion by relying on the de facto officer doctrine to refrain from vacating the affirmance of defendant’s conviction by a panel including unconstitutionally-appointed judges.  The Court certainly appeared to establish a norm or default rule that vacatur was the appropriate remedy, and found that the appellate court’s departure from such a norm unjustified.  The case did not call for, and the Court may well not have intended to establish, an unyielding and universal rule that all actions of all unconstitutionally appointed adjudicators must be invalidated.

[4] The doctrine had been applied in criminal cases, particularly in the 1960’s, when the Court’s novel decisions expanding the rights of criminal defendants would have “seriously disrupt[ed] the administration of our criminal laws[,] … requir[ing] the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” James B. Beam Distilling v. Georgia, 501 U.S. 529, 538 (1991).

[5] Lucia went on to provide that the improperly-appointed adjudicator who had already decided a case could not be reassigned the case even if he had subsequently been properly appointed.  Lucia v. SEC, supra, 585 U.S. at 251.

Perhaps the Lucia Court should have acknowledged the difference between Ryder, a criminal case, and the case before it, an administrative civil penalty proceeding.  It is conceivable that a stricter remedial rule might operate in the criminal context, given the penal consequences of criminal convictions.  Such an approach would cut in favor of Judge Cannon’s ruling in U.S. v. Trump, but, for other reasons outlined in this series, should not carry the day for former President Trump and his co-defendants.

[6] In doing so, by way of dicta, it appeared to expand the rule beyond adjudicatory officials, such as to the Director of the Federal Housing Finance Agency (FHFA), whose tenure protections were challenged in the case, though the Court offered no rationale for doing such an expansion.

[7] Youngstown is arguably the exception, as seizure of private property is neither a legislative nor a judicial prerogative.  However, the Court considered the President to have essentially created his own legislation granting himself certain powers, in contravention of Congress’ enactment of contrary legislation, and then exercise the power he had purported to give himself.  345 U.S.at 588-89.

[8] National Labor Relations Board v. Canning, 573 U.S. 513 (2014), regarding three “recess appointments” to the National Labor Relations Board (NLRB), merits discussion. There, the Court’s affirmed the lower court vacatur of the challenged NLRB decision, without a discussion of whether that was the appropriate remedy. Canning is distinguishable from U.S. v. Trump on the same two grounds as discussed above.  The case involved a suit to vacate an adjudicative decision, not the exercise of a purely executive power.  And the President lacked the authority to appoint anyone to the Board, without the Senate’s “advice and consent,” because the appointments were not made during a Senate recess.  Thus, the recess appointments question did not involve the eligibility of the particular persons chosen for the Board.  In any event, a violation of the constitutional limitations on recess appointments presents a more central threat to the constitutional order than most “Appointments Clause” challenges, perhaps justifying a more unyielding rule.

[9] Of course, some believe Humphrey’s Executor may soon be revisited by the Court.  See, Consumer’s Research v. CPSC, 91 F.4th 342, 345 (5th Cir. 2024), cert. filed, Dkt. No. 23-1323 (June 18, 2024) (“[t]oday’s case may also attract the Court’s interest[;] [i]t tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor ‘exception’ to the general ‘rule’ that lets a president remove subordinates at will”); see generally, In Re Aiken County, 645 F.3d 428, 441-46 (Kavanaugh, J., concurring)(criticizing Humphrey’s Executor, though acknowledging it as binding precedent).  For an extensive analysis of now-Justice Kavanaugh’s Aiken County concurrence and its implications for Humphrey’s Executor, see Christopher J. Walker, Would a Justice Kavanaugh Overturn Humphrey’s Executor and Declare Independent Agencies Unconstitutional? In recent years Humphrey’s Executor has certainly been limited, Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020)(limiting Humphrey’s Executor to members of multi-member agency-heading boards and commissions); Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 (2010)(precluding double insulation, i.e. multiple levels of tenure protection)).

[10] The majority observed:

There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. 

Morrison v. Olson, supra, 487 U.S. at 691.

[11] There the Court said:

We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred. Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.

(Emphasis added.)

[12] Administrative appeals of disability determinations made by the Social Security Administration’s administrative law judges (ALJs) are not limited solely to the record compiled at the hearing by the ALJ.  E.g., Sims v. Apfel, 530 U.S. 103, 111 (2000)(citing 20 C.F.R. § 404.970(b)); Ingram v. Commissioner, 496 F.3d 1253, 1261 (11^th Cir. 2007)(“With a few exceptions, the claimant is allowed to present new evidence at each stage of [social security disability determination] administrative process,” citing 20 C.F.R. § 404.900(b)); see generally, CAROLYN A. KUBITSCHEK, JON C. DUBIN, SOCIAL SECURITY DISABILITY LAW AND PROCEDURE IN FEDERAL COURT §§ 6:39; 8:10 (2024) (available on westlaw).

[13] As the Court explained:

The assistant regional administrator simply cannot be equated with the kind of decisionmakers to which the principles of Tumey [v. Ohio, 273 U.S. 510, (1927)], and Ward have been held applicable. He is not a judge. He performs no judicial or quasi-judicial functions. He hears no witnesses and rules on no disputed factual or legal questions. The function of assessing a violation is akin to that of a prosecutor or civil plaintiff. If the employer excepts to a penalty . . . he is entitled to a de novo hearing before an administrative law judge. In that hearing the assistant regional administrator acts as the complaining party and bears the burden of proof on contested issues. . . . It is the administrative law judge, not the assistant regional administrator, who performs the function of adjudicating child labor violations. . . The rigid requirements of Tumey and Ward, designed for officials performing judicial or quasi-judicial functions, are not applicable to those acting in a prosecutorial or plaintiff-like capacity.

(Emphasis added.)

[14] Some states have addressed the question of whether convictions secured by a prosecutor who is not licensed to practice law can be overturned.  See, People v. Dunson, 316 Ill.App.3d 760, 763-770, 737 N.E.2d 699 (2d Dist. 2000) (discussing cases from several jurisdictions).   Some states apply an inflexible rule that requires invalidation regardless of whether the defendant can show prejudice.  E.g., People v. Munson, 319 Ill. 596, 150 N.E. 280 (1925). Some require a showing of prejudice, see, People v. Carter, 77 N.Y.2d 95, 566 N.E.2d 119 (1990)(in the absence of prejudice, prosecution by an unlicensed attorney not violative of federal or state “due process” rights), see also, People v. Jackson, 145 Misc.2d 1020, 548 N.Y.S.2d 987 (1989), rev’d, 163 A.D.2d 489, 558 N.Y.S.2d 590 (1990)(no showing of prejudice required). Yet others apply a more flexible rule while not necessarily requiring a showing of prejudice, e.g., State v. Graham, 764 N.W.2d 340, 357 (Minn. 2009).

[15] Judge Cannon sought to ascertain the degree of supervision the Attorney General maintained over Jack Smith’s work, but the Special Counsel’s Office invoked the deliberative process privilege in refusing to answer Judge Cannon’s queries.  U.S. v. Trump, supra at *36 n.57.

[16] Former President Trump appears not to have moved to dismiss the Special Counsel’s indictment against him in the U.S. District Court for the District of Columbia on Appointments Clause grounds.  (The issued was not addressed in Judge Chutkan’s decision regarding defendant’s motion to dismiss the indictment in that case on various constitutional grounds. See, United States v. Trump, 2023 WL 8359833 (D.D.C. Dec. 1, 2023) (Chutkan, J.), aff’d, 91 F.4th 1173 (D.C. Cir. 2024), vacated and remanded, 603 U.S. —, 144 S.Ct. 2312 (2024).  Of course, the D.C. Circuit has already held that Attorney Generals possess the authority to appoint Special Counsels from outside the Department of Justice.  In re Grand Jury Investigation, 916 F.3d 1047, 1053-54 (D.C. Cir. 2019) (upholding the appointment of Robert Mueller as Special Counsel).

[17] In Carr v. Saul, 593 U.S. 83 (2021), the Court found timely Appointments Clause challenges to Social Security Administration administrative law judges (SSA ALJs) first raised on judicial review of an ALJ’s decision.  This was rather unusual in terms of review of agency adjudications.  However, the Supreme Court has held that exhaustion of administrative remedies with regard to particular issues is not required in Social Security Administration adjudications, given the inquisitorial nature of the proceedings (and the agency’s regulations that permit new arguments to be raised on internal appeals from ALJ rulings).

Carr v. Saul is not particularly relevant to the timeliness of former President Trump’s challenge to Jack Smith’s appointment.  Carr v. Saul, like Ryder and Lucia, involves the appointment of an adjudicator, not a prosecutor.  (While SSA ALJs may function somewhat like prosecutors in terms of the ALJs’ responsibility for developing the relevant facts as well as resolving the case, there is a clear distinction between a prosecutor in an adversarial system and an ALJ in an inquisitorial one.)  Moreover, the impact on third parties, such as those granted immunity from prosecution and those entering plea agreements with prosecutors, is far greater in invalidating all actions of prosecutors than in vacating decisions of SSA ALJs.

[18] The Court obliquely alluded to the doctrine in its discussion of the remedy in Buckley v. Valeo.

[19] To quote this discussion in Norton v. Shelby County more fully:

The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment of election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices, and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question.

Norton v. Shelby Co., supra, at 441-42.

[20] “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971); see generally, Ronald Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 DUKE L.J. 291, 315-317 (2003).