Special Counsel Jack Smith's good news

Former AG Michael Mukasey opened his WSJ op-ed with some good news for Special Counsel Jack Smith by writing "The good news is that he may not have to confront the thorny issues stemming from the Supreme Court’s presidential immunity decision." Unfortunately for Smith, Mukasey's op-ed is similar to Harry Truman's frustration with economists.

Specifically, Truman was constantly in search of a one-armed economist. He reportedly was annoyed with economists telling him good news, then saying "On the other hand..." I've never learned whether Truman ever found that one-armed economist. I guess I'll have to wait until the hereafter to find that out.

Unfortunately for Smith, there's also a heaping helping of bad news for him. The full opening paragraph says "There’s good news and bad news for special counsel Jack Smith. The good news is that he may not have to confront the thorny issues stemming from the Supreme Court’s presidential immunity decision. The bad news is that the good news may put him out of a job. That result would follow from a finding either that there is no legal authority for the creation of the office of special counsel, that he wasn’t appointed in compliance with the Constitution, or some combination of the two."

Gen. Mukasey then wrote this:

The Constitution’s Appointments Clause limits how executive offices can be created and how they may be filled. Before the Revolution, the king could both create and fill offices. The Constitution eliminated that power by giving Congress the authority to create offices or to authorize their creation in specific instances, and requiring the advice and consent of the Senate before the president could fill certain offices. It empowers the president to nominate and appoint "officers of the United States" not specifically provided for in the Constitution only with the advice and consent of the Senate, and only to offices "which shall be established by Law." The Appointments Clause does allow for the appointment of officers by the president, a court or the head of a department—such as the attorney general—but, again, only when such appointment is permitted "by Law."

Authority for appointment of the current special counsel doesn’t exist "by Law," but rather through a set of regulations put in place unilaterally by U.S. Attorney General Janet Reno in 1999. They don’t have the force of a law passed by Congress and signed by the president, and can be changed at any time by any attorney general.

In short, Smith's position isn't constitutionally sound. He certainly wasn't confirmed by the Senate. That alone makes his appointment constitutionally questionable. This person got Chief Justice Roberts' opinion wrong:

Firing Jack Smith, in this instance, isn't part of Chief Justice Roberts' ruling because Smith wasn't appointed according to the Constitution. Check this out:
If Congress had wished to allow the attorney general to create an office of special prosecutor, it would have done so with a statute as simple and direct as those that give the power to create offices to other cabinet secretaries—including the secretaries of transportation, agriculture, health and human services and education. It wouldn’t have relied on gossamer emanations from four statutes.
The good news for Constitution-loving people is that Clarence Thomas did his constitutional homework. The only thing left at this point is to throw Smith out of office. He wasn't confirmed so he can't be named as special counsel.

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