On August 26, Special Counsel Jack Smith filed the highly anticipated opening brief in the DOJ’s appeal to resurrect the high-profile classified documents case against former President Donald Trump. This case, once considered the most straightforward of the prosecutions of Trump, was unexpectedly derailed last month when Judge Aileen Cannon dismissed the indictment on constitutional grounds, holding that Congress had not vested the Attorney General with the constitutional authority to appoint a Special Counsel like Smith, as required under the Appointments Clause. 

Though there is much in the brief that will likely be scrutinized in the coming days and weeks, there is one argument in particular that caught our attention—the government’s invocation of an often-overlooked type of provision in Title 28 of the United States Code known as a “codifier’s canon.” This legislative instruction, buried in the front matter of various titles in the Code, states that no inference of legislative intent should be drawn from the placement of a section within a particular chapter or from the captions used in the title. The government relies on this canon to rebut Judge Cannon’s narrow reading of one of the provisions—28 U.S.C. § 533—that the government had relied on as providing the Attorney General the authority to appoint Smith as Special Counsel.  

In particular, although Section 533(1) appears to broadly authorize the Attorney General to “appoint officials to . . . detect and prosecute crimes against the United States,” Judge Cannon—echoing remarks from Justice Thomas in a recent concurrence in a separate case against Trump—relied on the section’s placement within the U.S. Code in a chapter labeled “Federal Bureau of Investigation” to construe it to confer only the authority to appoint FBI “officials.” On appeal, Special Counsel Smith now argues that this reasoning overlooks “Congress’s directive in 1966, when it codified Section 533, that” a provision in Title 28 should not be construed in light of its placement or caption within the Code. 

The government’s reference to the codifier’s canon is, in our view, a welcome development. For far too long, courts and litigants alike have ignored both the codifier’s canons and the role of codification in shaping the statutory text more generally. That said, as we argue in a forthcoming Article in Green Bag, The Special Counsel’s “No Source” Appointment?, the Special Counsel’s argument on appeal fails to capture the full codification story here.  To the contrary, while Smith’s reliance on the codifier’s canon seems persuasive at first glance, it overlooks a critical aspect of Section 533’s origins:  As some digging into the codification history reveals, Section 533 is what the modern codifiers refer to as a “no-source provision”—a codified statute that lacks an explicit foundation in the original statutes as enacted by Congress. 

This finding underscores how the codifiers—intentionally or not—play a far from ministerial role in the development of our law. Codification into the U.S. Code aims to make the law more accessible by compiling statutes by subject matter, helping legal professionals and the public avoid combing through the chronological Statutes at Large to find a provision and any subsequent amendments, repeals, or additions to it. The codifiers who assemble the Code are accordingly charged by statute to not substantively alter the law and to edit only for clarity and readability—the content of the laws compiled in the Code must have their ultimate basis in some past act of Congress, not unelected staff members. 

But to enhance the clarity of the laws compiled in the Code, the codifiers sometimes include “no source” provisions. These insertions, created by the codifiers out of whole cloth, do not correspond to any language in the original Statutes at Large. They are instead usually meant to make the law more readable by, for example, furnishing a definition that was only implied in existing statutes. 

That is essentially what the codifiers purported to do when they included what is now Section 533 in the U.S. Code. According to the notes of the provision, the power “to appoint officials to detect and prosecute crimes against the United States” was “implied” by the allocation of funding for these activities in the Department of Justice Appropriations Act of 1965 and a sequence of earlier annual funding bills. None but a few of the earliest of these bills, enacted decades earlier, contained language authorizing the Attorney General to appoint officials for these purposes. 

Reasonable as this inference may have seemed to the codifiers, it violated a canon of statutory interpretation that prohibits construing an appropriation as an authorization. This canon flows from one of Congress’s own longstanding rules, which prohibits new authorizations in funding bills—including the authorization to appoint new officials. Even if some of the earlier bills did purport do so, the duration of this authority was not permanent. Instead, under the House’s interpretation of its own rules, such an authorization was limited to the year of the appropriation. 

In short, when the codifiers inferred Section 533’s substantive appointment authority, they did so without a legal basis—express or implied. Though Congress subsequently ratified this decision by enacting the provision into positive law, this history counsels against giving the provision its broadest possible construction. A “no source” provision that originated from a forbidden inference from a funding bill is not quite an explicit congressional license to appoint constitutional officers—for the FBI and certainly otherwise. 

Thus, though there is merit to the Special Counsel’s argument that Title 28’s codifier’s canon made Judge Cannon’s use of caption and placement inappropriate here, the role of codification in the development of Section 533 reveals an alternative basis for arriving at the same narrow reading. Of course, this does not mean that the Attorney General lacked the authority to appoint the Special Counsel.  But it does suggest such authority should be located somewhere other than in an overlooked decision by unelected bureaucrats. 

More broadly, we hope that the curious history of Section 533—and the outsized role that the codifiers have had to play in a case of such public importance—will encourage courts to engage with the role of codification in statutory interpretation. Our finding is one of several recent advances that shows the consequential role these staff members play in the development of the law, with other work demonstrating the ignored role of codification, for example, in the development of the doctrine of qualified immunity, or going ignored in high-profile cases last term at the Supreme Court. By directing their attention to these issues, courts can provide legal clarity to both the profession and the public. And isn’t that what codification is all about?

The full draft of our forthcoming Green Bag article is now up on SSRN and any comments are very welcome.

Adam Flaherty is a recent graduate of Yale Law School and an associate at Boies, Schiller, and Flexner. Daniel B. Listwa is an associate at Wachtell, Lipton, Rosen & Katz and a non-resident fellow at the Yale Law School Center for Private Law.