Amicus Presenting to Judge Aileen Cannon Next Week in the Trump Case

Taken from Joyce Vance’s Civil Discourse

I thought perhaps the argument going on in front of Federal Judge Cannon about Jack Smith’s appointment to prosecute XPres. Donald Trump might need some explanation. I am borrowing from Joyce Vance’s Civil Discourse as a subscriber. This is kind of a sideshow to the real issue of trump being prosecuted. The Defense is pulling from whatever pile of mud they have to disrupt and delay the trial to such time as he “might” be elected.

Attorney Joyce Vance of Civil Discourse: Judge Cannon took the unusual step of inviting lawyers on both sides of the issue who filed amicus briefs to participate in oral argument.  Matthew Seligman, who argue the statute is constitutional, join us to answer my questions about the arguments, the stakes, and the process the Judge is using. The statute allowing the appointment of Jack Smith by Merrik Garland.

Matthew Seligman will be arguing as amici of Jack Smith’s appointment is legitimate and legal.


Joyce Vance asking Matthew Seligman: Can you explain the issue Judge Cannon has asked you to appear in front of her to argue next Friday? What’s your position on that issue?

Matthew: The hearing will address Mr. Trump’s argument that the case must be dismissed because Jack Smith’s appointment as Special Counsel was unlawful. Trump and two amici supporting him advance different versions of the appointments argument, all of which are ultimately based on the Appointments Clause of the Constitution. That Clause makes a distinction between “principal officers” and “inferior officers.” Principal officers must be appointed by the President and confirmed by the Senate. The Attorney General and the Secretary of State are quintessential examples of principal officers. Inferior officers, however, don’t necessarily have to be appointed by the President and confirmed by the Senate. Congress can pass a law that “vests” the appointment power in the President alone (so no Senate confirmation required), the courts, or “Heads of Departments” like cabinet secretaries. And the vast majority of people who work in the federal government are, in the lingo of the cases, “mere employees” who can be hired through whatever ways the law provides.

The first key issue is whether the Special Counsel counts as a principal officer or an inferior officer. That matters because he was appointed by Attorney General Merrick Garland and was not confirmed by the Senate. That’s lawful if he’s an inferior officer, but unconstitutional if he’s a principal officer. The difference between the two is defined by a multi-factor test, but the most important considerations are how much authority the officer holds and whether the officer is subordinate to a superior officer. The second key issue, assuming that the Special Counsel is an inferior officer, is whether Congress actually passed statutes that empower the Attorney General to appoint him.

We argue that the Special Counsel is an inferior officer, and Congress authorized the Attorney General to appoint him. As a result, the Special Counsel’s appointment is lawful.

Joyce: You aren’t a party to this case; you filed a written brief with the court as an amicus. Can you explain what that means and what role amicus play in litigation? Why do they get involved?

Matthew: The term amicus (plural: amici) is short for amicus curiae which means “friend of the court.” That terminology accurately describes the role of an amicus, or at least what an amicus should strive to be. The goal is to inform the court of an argument, significant facts, or simply an important perspective of the amicus of which the court might not otherwise be aware in order to help the court reach its decision. Amici almost always support one side or the other, so they aren’t neutral. But they should always aim to be helpful, as a true friend of the court. The reason isn’t (just) because the judge has a fancy title and a lifetime appointment. An effective amicus brief will offer something to the court that might move the needle on how it decides the case before it. That might be offering a novel legal argument or expanding on a legal argument beyond what the parties have said. It might be explaining the practical consequences of a decision. In whatever form, the most effective amicus briefs—much like the most effective briefs by parties—help the judge figure out the law and make it easy for the judge to write an opinion favoring your side.

One of the most celebrated amicus briefs in American history was filed in the 2003 Supreme Court case Grutter v. Bollinger, which upheld  affirmative action in university and law school admissions. (For a time, at least, until the Supreme Court reversed course and struck the practice down last year in Students for Fair Admissions v. Harvard.) The brief, which the Court cited in its opinion, was filed on behalf of former high-ranking officers and civilian leaders of the military, including former military-academy superintendents and Secretaries of Defense. The brief explained that a diverse officer corps was essential to unit cohesion with a diverse population of enlisted personnel, and that diversity in higher education was necessary to ensure a diverse officer corps. That was a unique and powerful perspective that wasn’t emphasized by the parties. According to Supreme Court lore, that brief might have flipped the result by convincing Justice Sandra Day O’Connor that the nation still needed affirmative action.

That’s a lofty standard that very few amicus briefs meet. We hope that our brief will help Judge Cannon see the law as clearly as possible.

Joyce: What is the other side’s position on the legitimacy of special counsel appointments? And why do you believe you have the better argument?

Matthew: Trump and two groups of amici supporting him all argue that the Special Counsel was unlawfully appointed, but for somewhat different reasons. Trump himself seems to concede that the Special Counsel is an inferior officer, but argues that none of the statutes Merrick Garland relied on in appointing Smith actually give him the authority to do so. A group of amici led by former Attorneys General Ed Meese and Michael Mukasey and legal scholars Steven Calabresi and Gary Lawson argue that the Special Counsel is actually a principal officer and thus the Appointments Clause required that he be appointed by the President and confirmed by the Senate—which he wasn’t. And another amicus brief on behalf of legal scholar Seth Barrett Tillman argues that Smith isn’t an officer at all, but rather he’s a “mere employee” because his appointment is (in the words of a 19th century case) “occasional and temporary,” rather than “continuing and permanent”—and therefore he can’t lawfully wield as much power as he has. It’s notable that the three briefs arguing against Smith’s appointment advance different, and mutually inconsistent, positions.

We believe we have the better of the argument because we have precedent—all of it—on our side. No court has ever adopted any of the arguments that Trump and his amici make. The Supreme Court rejected Trump’s statutory argument when it upheld the Watergate-era special prosecutor, who was appointed under the same statutes Merrick Garland relied on. The Supreme Court rejected Meese et al.’s argument when it held the now-defunct Independent Counsel, who held the same prosecutorial powers as the Special Counsel and was quite a bit more independent from supervision, was an inferior officer. And the precedent that Tillman et al. rely on, in our view, prove they are wrong. They rely on a 19th century case to compare the Special Counsel to a  surgeon who essentially performed gig work—whenever the Commissioner of Pensions asked, he could (but was not required to) examine a pensioner for a per-patient fee. That’s nothing like the Special Counsel. And Tillman et al. concede that the Supreme Court rejected their argument when it upheld the Independent Counsel.

More recently, the D.C. Circuit upheld Acting Attorney General Rod Rosenstein’s appointment of Special Counsel Robert Mueller during the Trump administration, rejecting precisely the arguments that are now being raised again.

This is as small an explanation I can give of what is going on in front of Federal Judge Aileen Cannon. Both sides are presenting their arguments. I do not believe this commentary by Joyce Vance is available to the overall public. Hope this helps.