The legal battle over the dismissal of the Mar-a-Lago documents case against former President Donald Trump has intensified, with conservative nonprofit groups now urging the U.S. Court of Appeals for the 11th Circuit to uphold the dismissal. These groups, led by the nonprofit America’s Future, have submitted a detailed brief arguing that Special Counsel Jack Smith’s appointment is unconstitutional, violating both the Appointments Clause and the Appropriations Clause of the U.S. Constitution. According to their argument, because there was no specific legislation establishing an office of Special Counsel when Smith was appointed in November 2022, his appointment is invalid. The conservative amici claim that his office was never lawfully established by Congress, thus making his role unconstitutional.
The core of the amici’s argument is that the absence of a legislative foundation for the Special Counsel position means that any expenditures made under Smith’s authority are likewise unlawful. This assertion builds upon a view that without specific congressional authorization, the Attorney General lacked the authority to establish an office with the expansive prosecutorial powers that Smith holds.
This argument over Smith’s appointment closely mirrors issues raised earlier in the case, when U.S. District Judge Aileen Cannon dismissed the indictment based on constitutional concerns. Trump’s defense team initially raised these concerns in February, arguing that Smith’s appointment was constitutionally unsound and violated the structural limits imposed by the Constitution. Right-leaning legal organizations, professors, and scholars supported this perspective, submitting briefs that emphasized the need for a constitutional check on the establishment of such an office. By contrast, a number of left-leaning legal scholars and historians argued that Smith’s appointment was fully within established constitutional parameters, consistent with past practice and judicial precedent.
Cannon’s decision to dismiss the case highlighted an interpretation of the Appointments Clause that drew on reasoning from Justice Clarence Thomas, who had previously expressed skepticism about unchecked executive power in similar contexts. Thomas’s perspective on the Appointments Clause unlike the majority opinion that focused more broadly on executive immunity argued that certain executive powers should be more tightly regulated, especially in relation to prosecutorial roles. In this case, Thomas’s view added fuel to the argument that Smith’s appointment might be constitutionally flawed. The amici supporting dismissal have leaned heavily on this interpretation, arguing that Thomas’s position presents a substantial constitutional obstacle to Smith’s role.
Since August, when Smith appealed the lower court’s decision to dismiss, Trump’s defense has continued to press the constitutional clauses as the basis for affirming the dismissal. They argue that Smith’s position not only lacks proper authorization but also circumvents critical checks and balances intended to prevent overreach within the executive branch. The 11th Circuit is now tasked with evaluating these claims as the case proceeds before a three-judge appellate panel.
A key argument from the amici is that Smith is not merely an “inferior officer” under the Department of Justice’s authority but is instead functioning as a “principal officer” due to the high degree of autonomy and decision-making power in his role. By granting Smith considerable authority with limited oversight, the amici argue, the Attorney General has effectively placed him in a role with binding implications for the federal government a status that should constitutionally require Senate confirmation. The amici argue that the lack of direct oversight and significant prosecutorial power vested in Smith elevates his role to that of a principal officer, a position that would typically require formal Senate approval, as is the case with high-ranking executive positions like cabinet secretaries and federal judges.
Beyond the Appointments Clause, the amici’s argument also invokes the non-delegation doctrine. This doctrine holds that legislative authority cannot be delegated to the executive without clear boundaries. The amici contend that the Attorney General’s power to create a prosecutorial office like Smith’s, without legislative approval, oversteps this doctrine, thus violating the separation of powers. In their view, establishing a Special Counsel role with substantial prosecutorial autonomy equates to an unconstitutional delegation of congressional authority, bypassing the necessary checks that Congress should hold over such a significant position.
The amici’s brief also directly challenges historical comparisons raised by the government in defense of Smith’s appointment. Smith’s team has argued that his appointment is consistent with historical precedents, drawing parallels to special prosecutor roles from the Nixon-era Watergate scandal and other high-profile cases. These examples, the government argues, provide a precedent for special prosecutors operating with similar degrees of independence. However, the amici contend that these cases are neither consistent nor applicable, as the historical instances cited do not involve roles with the same level of autonomy and prosecutorial authority that Smith holds. According to the amici, the special prosecutor roles of the past were not constitutionally comparable to the current case and should not justify Smith’s appointment under the Appointments Clause.
This constitutional challenge rests on a claim that Smith’s position resembles a cabinet-level role rather than that of a subordinate officer. By pointing to the degree of authority Smith holds over critical federal matters without significant oversight the amici argue that his role is unprecedented in the history of the Department of Justice. They assert that no special prosecutor or counsel has held such extensive powers outside the formal appointment processes that are constitutionally mandated. This argument highlights the amici’s belief that Smith’s role is incompatible with the structural checks envisioned by the Framers of the Constitution.
The argument that Smith’s role should require Senate confirmation stems from the idea that executive officers with broad, binding authority over federal matters cannot be appointed solely by the Attorney General. The amici argue that Smith’s prosecutorial powers make him more than a typical DOJ employee; instead, they place him in a class of officers who wield substantial authority. According to the amici, the Constitution requires that such officers undergo a more rigorous appointment process to ensure accountability and prevent excessive centralization of power within the executive branch.
As the case now stands, both sides are preparing for further arguments in the 11th Circuit, where the appellate court will take the first in-depth look at Judge Cannon’s initial dismissal. It’s likely that the court will hear from other amici groups as well, representing both perspectives on the case and offering additional insights into the complex constitutional questions at play. The outcome could have significant implications not only for the Mar-a-Lago documents case but also for the broader interpretation of executive power and the limits of prosecutorial authority.
At the heart of this legal battle is a broader debate over the balance of power between Congress and the executive branch. The amici supporting Trump argue that the unchecked establishment of a powerful prosecutorial office like Smith’s encroaches upon legislative powers, sidestepping the requirement that Congress approve the creation of such significant positions. According to this view, the Attorney General’s appointment of a Special Counsel with broad authority poses a risk of executive overreach, undermining the constitutional safeguards that are supposed to prevent such an imbalance.
The amici contend that Smith’s office lacks meaningful historical precedent, citing the fact that past special prosecutors and counsels generally did not operate with the same level of autonomy or longevity. By placing Smith in a position that allows him to act independently on federal matters, the amici argue that the Department of Justice has set a troubling precedent. They claim that this arrangement is incompatible with the checks and balances that are integral to the constitutional structure of the United States government.
Another central issue in the amici’s argument is the notion of prosecutorial independence. They contend that the wide latitude Smith enjoys in his role, without substantial oversight from the Attorney General or other executive officials, makes his office uniquely powerful and unaccountable. This independence, the amici argue, effectively removes Smith from the traditional supervisory structures of the DOJ, placing him beyond the reach of typical executive oversight. According to their view, this level of autonomy is constitutionally problematic, as it creates a position that operates outside of the executive’s usual chain of command.
The amici further argue that, by establishing the Special Counsel’s office without congressional authorization, the Attorney General has created a role that exceeds the executive’s constitutional authority. They contend that only Congress has the power to establish an office with such significant and far-reaching powers, a power that cannot be delegated to the executive branch without violating the separation of powers. This argument hinges on the idea that prosecutorial offices with extensive jurisdiction and independence require explicit legislative authorization to ensure accountability.
This case exemplifies the tension between the desire for prosecutorial independence and the need for accountability within the executive branch. Proponents of Smith’s appointment argue that his independence is necessary to ensure an impartial investigation, especially in politically sensitive cases involving high-profile figures. However, the amici argue that this independence comes at a constitutional cost, as it removes a layer of accountability that is necessary to prevent abuse of power within the executive.
As the appellate court deliberates on these arguments, the decision could set a significant precedent regarding the scope of the Attorney General’s authority to appoint special prosecutors and the constitutional requirements for such appointments. If the court sides with the amici, it could limit the DOJ’s ability to establish special prosecutors with extensive independence in future cases, requiring more direct legislative authorization for similar positions. Conversely, if the court upholds Smith’s appointment, it could affirm a broader interpretation of executive power, allowing the DOJ greater flexibility in appointing special counsels without congressional approval.
The amici’s arguments raise important questions about the boundaries of executive power and the role of legislative oversight in maintaining a balanced government. This case underscores the challenges of balancing prosecutorial independence with the need for accountability and oversight within the federal government. As the court considers the constitutional implications, the outcome could have far-reaching consequences for future federal investigations, particularly in cases that involve significant prosecutorial discretion and independence.
The decision in this case will likely serve as a critical touchstone for the limits of prosecutorial authority within the Department of Justice. By evaluating the constitutional constraints on the creation and operation of the Special Counsel’s office, the court’s ruling could shape the future landscape of federal prosecutorial power. This case not only impacts the Mar-a-Lago documents investigation but also addresses fundamental questions about the structure of government and the distribution of power among the branches.
As the 11th Circuit prepares to rule, the outcome may redefine the scope of executive authority and clarify the constitutional requirements for appointing officials
with broad prosecutorial powers. Whether the court affirms or reverses Judge Cannon’s dismissal, the case highlights the ongoing struggle to balance the need for effective law enforcement with the constitutional principles that safeguard the separation of powers in the U.S. government.
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