AUSTIN – The Texas Public Policy Foundation filed an amicus brief presenting new evidence showing that special counsel in the U.S. Department of Justice do not have the power to initiate criminal prosecutions. Earlier this summer, District Judge Aileen Cannon granted President Trump’s motion to dismiss in the classified documents case. Judge Cannon held that Jack Smith was not properly appointed as an officer of the United States. This case is now on appeal to the U.S. Court of Appeals for the Eleventh Circuit. TPPF represented former Ninth Circuit Judge Alex Kozinski on the brief.
The brief cites evidence from the mid-nineteenth to early twentieth centuries that shows special counsel have historically been retained as employees, not officers. This evidence includes Comptroller of the Treasury decisions, an Attorney General opinion, congressional records, and court decisions. Jack Smith relied on this historic special counsel position to show he had been lawfully appointed. But as an employee—not an officer—a special counsel cannot exercise significant powers on the government’s behalf, such as bringing a criminal prosecution. The Constitution reserves those powers exclusively for officers.
“This new evidence presents a clear message: mere employees like Jack Smith lack the power to initiate a criminal prosecution,” said Eric Heigis, attorney at the Texas Public Policy Foundation’s Center for the American Future. “This brief provides additional support for arguments in other briefs—such as the Ray-Tillman-Landmark Brief—that Smith was not properly appointed under the Constitution. We urge the Eleventh Circuit to consider this historical record and apply the original meaning of Article II’s appointments clause.”
To read the amicus brief, click here.
Texas Public Policy Foundation is a non-profit free-market research institute based in Austin that aims to foster human flourishing by protecting and promoting liberty, opportunity, and personal responsibility. The Center for the American Future defends the Constitution through legal opposition to government overreach. The Center launches legal challenges at the administrative, district, and appellate court levels on behalf of ordinary people whose lives, liberty, and property are threatened by government action in defiance of the Constitution.
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