Here's the 93-page order, which starts this way: "Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful
Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this
Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel
Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S.
Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also
violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address
the proper remedy for that funding violation given the dismissal on Appointments Clause grounds.
The effect of this Order is confined to this proceeding."
From the Introduction:
The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter,
“Special Counsel Smith” or “Special Counsel”) in two consequential respects, both of which are
matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further [ECF No. 326]. The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing “Officers of the United
States.” Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all “Officers of
the United States”—whether “inferior” or “principal”—must be appointed by the President and
confirmed by the Senate. Id. It then goes on to direct that “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 Heads of Departments.” Id. For purposes of this Order, the Court accepts the Special
Counsel’s contested view that he qualifies as an “inferior Officer,” not a “principal” one, although
the Court expresses reservations about that proposition and addresses those arguments below. The
Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money
from being “drawn from the Treasury” unless such funding has been appropriated by an act of
Congress. Art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law. . . .”).
Both the Appointments and Appropriations challenges as framed in the Motion raise the
following threshold question: is there a statute in the United States Code that authorizes the
appointment of Special Counsel Smith to conduct this prosecution? After careful study of this
seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment—
28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing
power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial
power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory
arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade
otherwise.
The bottom line is this: The Appointments Clause is a critical constitutional restriction
stemming from the separation of powers, and it gives to Congress a considered role in determining
the propriety of vesting appointment power for inferior officers. The Special Counsel’s position
effectively usurps that important legislative authority, transferring it to a Head of Department, and
in the process threatening the structural liberty inherent in the separation of powers. If the political
branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate
and prosecute this action with the full powers of a United States Attorney, there is a valid means
by which to do so. He can be appointed and confirmed through the default method prescribed in
the Appointments Clause, as Congress has directed for United States Attorneys throughout
American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through
enactment of positive statutory law consistent with the Appointments Clause.
This Order proceeds as follows. After laying forth pertinent factual and procedural
background leading to the present Motion, the Court summarizes the legal principles underlying
the Appointments Clause and the separation-of-powers doctrine on which it rests. The Court then
surveys the statutory structure of the Department of Justice, focusing on the provisions which grant
the Attorney General appointment authority. Following that contextual summary, the Court
engages with the text, context, and structure of each of the statutes cited in the Appointment Order.
Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixed
historical record to deviate from the absence of such authority—the Court addresses the Supreme
Court’s dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974).
As the Nixon decision and record bear out, the Attorney General’s statutory appointment authority, or the matter of the Appointments Clause more generally, was not raised, argued, disputed, or
analyzed; at most, the Supreme Court assumed without deciding that the Attorney General possessed statutory appointment authority over the special prosecutor involved in that action.
Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to the
question whether Special Counsel Smith is a principal officer requiring Presidential nomination
and Senatorial consent. On that issue, although there are compelling arguments in favor of a
principal-officer designation given the regulatory framework under which he operates, the Court
rejects the position based on the available Supreme Court guidance. The Court then examines the
question of remedy, concluding that dismissal of this action is the only appropriate solution for the
Appointments Clause violation. Finally, the Court considers the Appropriations Clause challenge
to the funding of Special Counsel Smith, concluding for many of the same reasons that Congress
has not authorized the appropriation of money to be drawn for the expenses of his office. The
Order concludes there, finding it unnecessary under the current posture to reach the remedy
question for the Appropriations Clause violation.
From the Conclusion:
Upon careful study of the foundational challenges raised in the Motion, the Court is
convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural
cornerstones of our constitutional scheme—the role of Congress in the appointment of
constitutional officers, and the role of Congress in authorizing expenditures by law.
The Framers gave Congress a pivotal role in the appointment of principal and inferior
officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in
this case or in another case, whether in times of heightened national need or not. In the case of
inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment
power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so
in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the
absence of textual authorization for his appointment. The same structural emphases resonate in
the context of the Appropriation Clause, which “embodies a fundamental separation of powers
principle—subjugating the executive branch to the legislatures power of the purse.” All American,
33 F.4th at 221 (Jones, J., concurring).
In the end, it seems the Executive’s growing comfort in appointing “regulatory” special
counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps
this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases.
Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be
explained by the relative infrequency of these types of investigations, by congressional inattention,
or by the important roles that special-counsel-like figures have played in our country’s history.
Regardless of the explanation, the present Motion requires careful analysis of the statutory
landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with
care.
The Court thus returns to where it started. The Appointments Clause is “among the
significant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So too
is the Appropriations Clause, which carefully separates Congressional control of the “purse” from
Executive control of the “sword.” The Federalist No. 78 (Alexander Hamilton). The consequences
of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice
Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard
of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations
from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).
