From the (National) Archives
When one goes on a treasure hunt at the National Archives, one never knows what one may unearth. You might even find something relevant to a case that was dismissed last week!
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Western District of Kentucky, a man entered a guilty plea to shooting a candidate for mayor in Louisville. He was charged with interfering with a federally protected activity and discharging a firearm during a crime of violence.
In the District of Nevada, a man was sentenced after being found guilty at trial for threatening minors and coercing them to produce sexually explicit photos. The man then advertised and sold the images online.
In the Northern District of Alabama, a man entered a guilty plea to conspiring with others to export goods to Iran in violation of the United States’ trade embargo. The man shipped parts for use in energy production to Iran through third-party brokers in the United Arab Emirates.
An Appointment with the Past
I spent several days last week hidden away at the National Archives branch in Kansas City, Missouri. Why might you ask? I am searching for the origins of modern federal criminal prosecution. On my very last day on one of my very last folders, I came across a Justice Department brief written for a criminal case prosecuted in 1909. In it, the attorney writing the brief felt it necessary to discuss the Constitution’s appointment clause. Funny thing about that. The Appointments Clause was the center of Judge Aileen Cannon’s dismissal of the charges against Donald Trump in the Southern District of Florida. In this day and age, understanding the “original” meaning of the Constitution serves as the basis for many Supreme Court decisions. If we are going to do “originalism,” we might as well see how past generations understood the Appointments Clause’s meaning.
Last Monday, Judge Aileen Cannon, the judge presiding over former President Donald Trump’s Southern District of Florida case, in which he is accused of unlawfully retaining national security and national defense information, dismissed the case because Special Counsel Jack Smith was not properly appointed under the Appointments Clause of the Constitution. Before Justice Clarence Thomas blessed this decision proactively through his concurrence in the presidential immunity case, few gave this position much credence. What makes both opinions somewhat interesting is that if they rely on the original meaning and understanding of the Appointments Clause. It is an inaccurate understanding of the history.
Article 2, Section 2 of the Constitution includes a provision relating to the appointment of officers of the United States. It first identifies officers whom the President may appoint but are subject to the “Advice and Consent” of the Senate. These include Ambassadors, public ministers, consuls, Judges of the Supreme Court, and any other officer Congress decides should be appointed with Senate “Advice and Consent.” Following that, the Constitution gives Congress the power to delegate appointment authority for “inferior Officers” in the President, the Courts, or the “Heads of Departments.”
This language is fairly clear. If—and that is an important if in the Southern District of Florida case—Congress has authorized the appointment “by Law” then either the President or the Attorney General can appoint “inferior Officers.” Once question that is raised however is who constitutes an inferior officer. Is anyone who works for the federal government an officer? In the 1909 case I found in the Archives, a deputy marshal appointed to serve legal process was an officer.
To think about that question, we can look at three points in time. The first is when the federal government first used special counsels. The second—emerging from my Archives visit—takes place in 1876 as part of a nationwide investigation of whiskey tax fraud. The third, of course, is Judge Cannon’s opinion, issued last week.
In April, I wrote about the first special counsels. The government used them to assist the appointed United States Attorney. At no point did the President or the Attorney General obtain Congressional approval to make these appointments, as modern readings of the Appointments Clause suggest. All federal prosecutors were paid on a fee system. Congress provided for a schedule of fees that were to be paid based on the type of case. It did not take long for presidents to realize they needed federal prosecutors to serve as more that attorneys working in court. They also participated in investigative work. For this work, the appointed United States Attorneys would submit bills to the Treasury Department for their time. The same process worked for special counsels. It did not matter who did the work, the government hired them on an “as needed” basis.
This practice expanded during the 19th century as the government increasingly retained special counsel. An investigation into whiskey frauds in 1875 and 1876 demonstrates the Attorney General’s authority to appoint special prosecutors. The Whiskey Frauds, as they were known, were centered in St. Louis, Missouri, but stretched up and down the Mississippi River and as far east as New York. Political loyalties contributed greatly to the frauds going undetected for a number of years. Once discovered, the Attorney General made an immediate change to the United States Attorney in St. Louis. He selected an outsider with no prosecutorial experience. To assist the new appointee, Attorney General Edwards Pierrepont selected two special counsel. One was a former Democratic Missouri Senator. The other was from the radical wing of the Republican party. Combined they represented the political spectrum of the time. There was no statutory authorization for these special counsel.
As the legal attention to the frauds moved east, New York became more important. At the time, the United States Attorney for the Southern District of New York focused most of his attention on customs cases. New York was the largest United States port by this time. The United States Attorney, George Bliss, had little time to devote to criminal matters. The Whiskey Frauds would consume significant resources. Again, without express authorization from Congress, Pierrepont selected a New York attorney familiar with revenue matters to assist with the case.
With those two historical examples, we can now turn to Judge Cannon’s opinion. She ruled that Special Counsel Jack Smith was an officer of the United States. While this might seem obvious, it was not. The United States Supreme Court, in the 1970s, created a third group of federal employee. This third group are those without any discretion and are supervised by one or more of the other two groups. This group does not require any Congressional approval (although one would imagine there must be a budget to pay them). By placing Smith in the category of “inferior” federal official, Cannon had to find, in her reasoning, an express Congressional approval to hire a special counsel. In doing so, she overlooked the original meaning of the Appointments Clause and substituted the more “modern” interpretation adopted in the 1970s.
For its part, the government focused its argument on two statutes, arguing that Congress had delegated the Attorney General authority to hire anyone necessary to investigate and prosecute crimes. Title 28, Section 533 states: “The Attorney General may appoint officials— (1) to detect and prosecute crimes against the United States…” Cannon ruled that this was not sufficient as it was akin to “hiding elephants in mouseholes,” meaning that Congress would never have imagined that brief statement permitted the Attorney General to delegate prosecutorial authority to a special counsel.
Judge Cannon also dismissed the Government’s historical argument by asserting the history is inconsistent and spotty. She identified that special counsels have gone by numerous titles throughout United States history and noted that the different labels must hold different meanings. She also observed that, in some instances, Congress did explicitly call for special counsels to investigate matters. At the same time, she acknowledged but disregarded other historical precedents. She also failed to make a systematic historical inquiry.
Importantly, though, Judge Cannon considered the question of discretion. She emphasized repeatedly that Special Counsel Jack Smith was vested with extensive discretionary authority, much like a United States Attorney. This distinguishes him, according to Cannon, from nearly all other special counsels. This is true. Most, though certainly not all, special counsels were appointed, especially in the early years, as assistants and operated in conjunction with the United States Attorney. Of course, a more nuanced and detailed look at the role of the special counsel would reveal that they, in fact, controlled the prosecution. They were used to assist the United States Attorney by handling that case. This allowed the United States Attorney to devote attention to the office’s regular business.
Ultimately, the problem is not with Judge Cannon’s decision, per se. It is the fact that her opinion, like many other recent judicial decisions from those who espouse an interpretive theory based on “original” intent, seems to ignore the original intent and meaning of not only the Appointments clause but the purpose of the delegating statutes. If we are concerned about how to interpret these things and we believe that history provides an answer, then we must fully investigate that history. Not choose history we like and use that.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!