Amicus brief: Special Counsel Jack Smith doesn't have legal authority to prosecute former President Trump

WEST PALM BEACH, FL - In an amicus brief filed in U.S. District Court for the Southern District of Florida, Landmark Legal Foundation argues that far-left special counsel Jack Smith is not an “officer of the United States” and, as such, cannot legally exercise the broad prosecutorial powers of a United States attorney, according to Reason. 

Attorney Josh Blackman writes that he filed the amicus brief in the case of United States v. Trump (S.D. Fla.), which contends that Smith can only be characterized as a mere “employee.” As such, any further prosecution of former president Donald Trump “can continue, if at all, only under the normal supervision of the politically accountable United States Attorney for the Southern District of Florida.

This refers to the “documents” case, where it is alleged the former president had in his possession certain documents in purported violation of the Presidential Records Act. 

After the court accepted the brief, the following order was issued, according to Reason: “The amicus brief [410-1] is accepted for Court consideration. Should the Special Counsel or Defendants wish to file a separate response to the amicus brief, they may do so on or before April 4, 2024, in accordance with the Local Rules.” 

The brief centers around how the office of the special counsel was created, how someone was appointed to that office, and how that officer’s tenure can be terminated. It also raises questions concerning the scope of the officer’s powers and at "what level of supervision or direction" the officer is subject to.”

The brief claims that the case of United States v. Trump “implicates both aspects of Special Counsel Smith’s role.” 

The brief notes that Smith’s position was created by the attorney general (Merrick Garland) “to resolve a particular controversy,” noting that the position will “cease to exist when the investigation is completed.” In other words, the position is “temporary” rather than “continuing and permanent.” 

Landmark Legal contends that the position is not an “office” since it is not “continuous,” meaning that Smith’s position is that of an “employee” and not an “officer.” As such, Smith is not an “Officer of the United States,” which was the dissenting opinion of Supreme Court Justice Antonin Scalia in Morrison. 

According to the regulations governing a Special Counsel, they give that office “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney (28 C.F.R. § 600.6). Also, as cited in United States v. Hilario, 281 F.3d 19, 25 (1st Cir. 2000), a U.S. Attorney is considered an inferior “Officer of the United States.”

Landmark Legal notes that Smith, as a mere “employee,” is not legally authorized to “exercise the broad prosecutorial power of a United States Attorney.”

In other words, the amicus brief contends that Smith is acting beyond his authority granted under the Special Counsel regulation. It also alleges that Smith exercising the powers of an “Officer of the United States” as not an officer but an employee “violates the Supreme Court’s Appointments Clause jurisprudence.” 

The brief continues, “While Smith’s and his subordinate’s past actions may be salvageable by the De Facto Officer Doctrine, his future actions can continue under the current regulations, if at all, only under the normal supervision of the politically accountable United States Attorney for the Southern District of Florida.”