Read the Ruling That Dismisses the Documents Case Against Trump (2024)

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 1 of 93UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDAWEST PALM BEACH DIVISIONCASE NO. 23-80101-CR-CANNONUNITED STATES OF AMERICA,Plaintiff,V.DONALD J. TRUMP,WALTINE NAUTA, andCARLOS DE OLIVEIRA,Defendants.ORDER GRANTING MOTION TO DISMISS SUPERSEDING INDICTMENTBASED ON APPOINTMENTS CLAUSE VIOLATIONFormer President Trump's Motion to Dismiss Indictment Based on the UnlawfulAppointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with thisOrder [ECF No. 326]. The Superseding Indictment is DISMISSED because Special CounselSmith's appointment violates the Appointments Clause of the United States Constitution. U.S.Const., Art. II, § 2, cl. 2. Special Counsel Smith's use of a permanent indefinite appropriation alsoviolates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not addressthe proper remedy for that funding violation given the dismissal on Appointments Clause grounds.The effect of this Order is confined to this proceeding.INTRODUCTIONThe Motion before the Court challenges the legality of Special Counsel Smith (hereinafter,"Special Counsel Smith" or "Special Counsel") in two consequential respects, both of which arematters of first impression in this Circuit, and both of which must be resolved before this1

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 2 of 93prosecution proceeds further [ECF No. 326]. The first is a challenge to his appointment under theAppointments Clause, which provides the exclusive means for appointing "Officers of the UnitedStates." Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all “Officers ofthe United States”—whether “inferior” or “principal”—must be appointed by the President andconfirmed by the Senate. Id. It then goes on to direct that "Congress may by Law vest theAppointment of such inferior Officers, as they think proper, in the President alone, in the Courtsof Law, or in Heads of Departments." Id. For purposes of this Order, the Court accepts the SpecialCounsel's contested view that he qualifies as an “inferior Officer,” not a “principal” one, althoughthe Court expresses reservations about that proposition and addresses those arguments below. TheMotion's second challenge is rooted in the Appropriations Clause, which prohibits any moneyfrom being "drawn from the Treasury” unless such funding has been appropriated by an act ofCongress. Art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence ofAppropriations made by Law. . . .").Both the Appointments and Appropriations challenges as framed in the Motion raise thefollowing threshold question: is there a statute in the United States Code that authorizes theappointment of Special Counsel Smith to conduct this prosecution? After careful study of thisseminal issue, the answer is no. None of the statutes cited as legal authority for the appointment-28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointingpower or bestows upon him the right to appoint a federal officer with the kind of prosecutorialpower wielded by Special Counsel Smith. Nor do the Special Counsel's strained statutoryarguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuadeotherwise.2

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 3 of 93The bottom line is this: The Appointments Clause is a critical constitutional restrictionstemming from the separation of powers, and it gives to Congress a considered role in determiningthe propriety of vesting appointment power for inferior officers. The Special Counsel's positioneffectively usurps that important legislative authority, transferring it to a Head of Department, andin the process threatening the structural liberty inherent in the separation of powers. If the politicalbranches wish to grant the Attorney General power to appoint Special Counsel Smith to investigateand prosecute this action with the full powers of a United States Attorney, there is a valid meansby which to do so. He can be appointed and confirmed through the default method prescribed inthe Appointments Clause, as Congress has directed for United States Attorneys throughoutAmerican history, see 28 U.S.C. § 541, or Congress can authorize his appointment throughenactment of positive statutory law consistent with the Appointments Clause.This Order proceeds as follows. After laying forth pertinent factual and proceduralbackground leading to the present Motion, the Court summarizes the legal principles underlyingthe Appointments Clause and the separation-of-powers doctrine on which it rests. The Court thensurveys the statutory structure of the Department of Justice, focusing on the provisions which grantthe Attorney General appointment authority. Following that contextual summary, the Courtengages with the text, context, and structure of each of the statutes cited in the Appointment Order.Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixedhistorical record to deviate from the absence of such authority-the Court addresses the SupremeCourt's dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974).As the Nixon decision and record bear out, the Attorney General's statutory appointment authority,or the matter of the Appointments Clause more generally, was not raised, argued, disputed, oranalyzed; at most, the Supreme Court assumed without deciding that the Attorney General3

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 4 of 93possessed statutory appointment authority over the special prosecutor involved in that action.Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to thequestion whether Special Counsel Smith is a principal officer requiring Presidential nominationand Senatorial consent. On that issue, although there are compelling arguments in favor of aprincipal-officer designation given the regulatory framework under which he operates, the Courtrejects the position based on the available Supreme Court guidance. The Court then examines thequestion of remedy, concluding that dismissal of this action is the only appropriate solution for theAppointments Clause violation. Finally, the Court considers the Appropriations Clause challengeto the funding of Special Counsel Smith, concluding for many of the same reasons that Congresshas not authorized the appropriation of money to be drawn for the expenses of his office. TheOrder concludes there, finding it unnecessary under the current posture to reach the remedyquestion for the Appropriations Clause violation.PROCEDURAL HISTORY AND OVERVIEW OF MOTIONOn June 8, 2023, a grand jury in the Southern District of Florida returned an indictment,signed by the Special Counsel, charging former President Trump with thirty-one counts of willfulretention of national defense information in his Mar-a-Lago residence, in violation of 18 U.S.C.§ 793(e) [ECF No. 3]. The indictment also brought seven conspiracy and concealment chargesagainst Trump and Waltine Nauta, collectively and/or individually [ECF No. 3 (charging 18U.S.C. §§ 1512(k), 1512(b)(2)(A), 1512(c)(2), 1519, 1001(a)(2), 2)]. On July 27, 2023, the grandjury returned a Superseding Indictment, also signed by the Special Counsel, increasing the numberof total charges to forty-two, and adding a third defendant, Carlos De Oliveira [ECF No. 85].4

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 5 of 93On February 22, 2024, Trump filed the instant Motion [ECF No. 326].¹ The SpecialCounsel filed an Opposition on March 7, 2024 [ECF No. 374], and Trump filed a Reply on March24, 2024 [ECF No. 414].² Three sets of amicus parties filed briefs on the Appointments Clausequestion [ECF Nos. 364-1, 586-587, 618 ("Meese amici"); ECF No. 410-2 (“Landmark Legalamici"); ECF No. 429 ("Constitutional Lawyers amici")]. And the Court later ordered andreceived supplemental briefing addressing the need for factual development on the Motion[ECF No. 588; see ECF No. 617, 619–620]. Finally, on June 21 and 24, 2024, the Court heardlengthy oral argument on the Motion from the parties and the authorized amici.³The Motion seeks dismissal of the Superseding Indictment “based on the unlawfulappointment and funding of Special Counsel Jack Smith” [ECF No. 326]. The Motion argues thathis appointment violates the Appointments Clause for two basic reasons: (1) Special CounselSmith was not nominated by the President or confirmed by the Senate, as would be required forthe appointment of a principal officer or for the appointment of an inferior officer as to whichCongress has not authorized such appointment, and (2) even accepting the position that he qualifiesas an inferior officer, none of the statutes cited in the Appointment Order, see 28 U.S.C. §§ 509,510, 515, 533, vests the Attorney General with authority to appoint a special counsel “with the fullpower and authority to exercise all investigative and prosecutorial functions of any United StatesAttorney," as is the case with Special Counsel Smith, see 28 C.F.R. § 600.6. The Motion1 Defendants De Oliveira and Nauta join the Motion [ECF Nos. 331, 611].2 Defendant Trump stood trial in New York state criminal court from April 15, 2024, through lateMay 2024 [ECF No. 421].3 The Appointments Clause challenge was argued on June 21, 2024; the Appropriations Clausechallenge was argued on June 24, 2024. Transcripts for these hearings can be located atECF Nos. 647 and 648.5

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 6 of 93separately raises an Appropriations Clause challenge because (1) he is drawing on a permanentindefinite appropriation reserved for an “independent counsel" under a statutory appropriation thatdoes not apply to him, see Department of Justice Appropriations Act of 1988, Pub. L. No. 100-202, 101 Stat. 1329 (Dec. 22, 1987) (hereinafter, “Indefinite Appropriation"); and (2) there is no"other Law" authorizing the appropriation as to him [ECF No. 326].The Special Counsel opposes both challenges. As to the Appointments Clause issue, heurges that the Attorney General exercised statutory authority in 28 U.S.C. §§ 515 and 533 toappoint him, citing the Supreme Court's decision in United States v. Nixon, 418 U.S. 683 (1974),D.C. Circuit authority, and historical practice [ECF No. 374 pp. 1–16]. As to the AppropriationsClause issue, Special Counsel Smith argues that he lawfully draws from the IndefiniteAppropriation for independent counsels, because he retains substantial independence from theAttorney General and was appointed pursuant to "other law" in the form of the same statutes citedabove 28 U.S.C. §§ 515 and 533. In any case, Special Counsel Smith continues, anyappropriations defect should not result in dismissal of the Superseding Indictment because theDepartment could lawfully have drawn funds from another source to investigate and prosecute thisaction [ECF No. 374 p. 25].FACTUAL BACKGROUNDI.Smith Appointment OrderOn November 18, 2022, by Order Number 5559-2022, Attorney General Garlandappointed John L. Smith, an attorney from outside the United States Government, to serve as6

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 7 of 93Special Counsel for the United States Department of Justice. 4 Special Counsel Smith was notnominated by the President or confirmed by the Senate.The Appointment Order states that Attorney General Garland is "vested" with appointmentauthority to issue the Appointment Order pursuant to 28 U.S.C. §§ 509, 510, 515, 533―statutesdiscussed further below. The Appointment Order then authorizes the Special Counsel to conducttwo specified "ongoing investigation[s]" and to "prosecute federal crimes arising from" thoseinvestigations. Appointment Order at 1-2. The first investigation relates to "efforts to interferewith the lawful transfer of power following the 2020 presidential election.” Id. at 1. The secondinvestigation is "referenced and described in the United States' Response to Motion for JudicialOversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC(S.D. Fla. Aug. 30, 2022) (ECF No. 49 at 5–13), as well as any matters that arose or may arisedirectly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a)." Id. at 2. Theinstant Superseding Indictment—and the only indictment at issue in this Order—arises from thelatter investigation.With respect to funding, all parties agree that Special Counsel Smith's office has beenfunded since its inception using "a permanent indefinite appropriation . . . established within theDepartment of Justice to pay all necessary expenses of investigations and prosecutions byindependent counsel appointed pursuant to the provisions of 28 U.S.C. § 591 et seq. [now expired]or other law." 101 Stat. 1329. This is a limitless appropriation. As of September 2023, Special4The Appointment Order is made part of the record on this Motion and is referred to herein as the"AppointmentOrder."Seehttps://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf. The Department of Justice'smain webpage contains an "Oversight” category with links to webpages for various SpecialCounsel's Offices, including that of Jack Smith. https://www.justice.gov/agencies/chart/grid;https://www.justice.gov/sco-smith.7

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 8 of 93Counsel Smith's Statement of Expenditures reflects $12,807,668 in direct expenses drawn fromthe Indefinite Appropriation, plus an additional $11,096,601 in “component” expenses“attributable to this investigation,” also drawn from the Indefinite Appropriation.5II.Special Counsel RegulationsAt the end of the Appointment Order, there is the following reference to Department ofJustice regulations: "Sections 600.4 to 600.10 of title 28 of the Code of Federal Regulations areapplicable to the Special Counsel." Appointment Order at 2. Those regulations, hereinafterreferred to as the "Special Counsel Regulations” or “Regulations,” are in force today, and theystem from a Final Rule promulgated by the Office of the Attorney General in July 1999 and latercodified at 28 C.F.R. §§ 600.1 through 600.10. See Office of Special Counsel, 64 Fed. Reg. 37038(July 9, 1999). The Notice of Final Rule states that the regulations "replace the procedures forappointment of independent counsel pursuant to the Independent Counsel Reauthorization Act of1994," and it cites as statutory authority the following seven statutes in Title 28, Chapter 31 of theUnited States Code: 28 U.S.C. §§ 509, 510, 515–519.76The Special Counsel Regulations consist of ten sections spanning various topics, rangingfrom jurisdiction, power, staffing, conduct, and accountability, among others. 28 C.F.R. §§ 600.1–600.10. As most relevant here, and as explored more fully below, the Special Counsel Regulations5 Special Counsel's Office - Smith Statement of Expenditures, November 18, 2022 through March31, 2023; Special Counsel's Office – Smith Statement of Expenditures, April 1, 2023 throughSeptember 30, 2023. See https://www.justice.gov/sco-smith (last visited July 13, 2024). Noadditional financial statements have been published yet.6This rule was deemed exempted from the notice and comment requirements of the AdministrativeProcedure Act on the view that it "relate[d] to matters of agency management or personnel." 64Fed Reg. at 37041.7 28 U.S.C. § 533, cited in the Appointment Order, is not among the authorizing statutes listed inthe Final Rule.8

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 9 of 93declare the grounds for appointing a Special Counsel from "outside the United StatesGovernment," id. §§ 600.1, 600.3 (referencing “a conflict of interest for the Departmentor other extraordinary circ*mstance");direct the Attorney General to “establish[]" the “jurisdiction of a Special Counsel"through a "specific factual statement of the matter to be investigated," with anyexpansion of that jurisdiction to be determined by the Attorney General, id. § 600.4(a)-(b);authorize the Special Counsel to wield, "within the scope of his or her jurisdiction, thefull power and independent authority to exercise all investigative and prosecutorialfunctions of any United States Attorney,” id. § 600.6, and without being “subject to theday-to-day supervision of any official of the Department,” id. § 600.7(b);permit the Attorney General to remove the Special Counsel but only "for misconduct,dereliction of duty, incapacity, conflict of interest, or for other good cause, includingviolation of Departmental policies,” id. § 600.7(d);give the Special Counsel discretion to “determine whether and to what extent to informor consult with the Attorney General or others within the Department about the conductof his or her duties and responsibilities," id. § 600.6;permit (but do not require) the Attorney General to seek explanations from the SpecialCounsel about "any investigative or prosecutorial step," id. § 600.7(b);dictate that the Special Counsel "shall comply with the rules, regulations, procedures,practices and policies of the Department of Justice," id. § 600.7(a); andauthorize the Attorney General, on a permissive basis, and after “review," to determinethat a particular action of the Special Counsel should not be pursued because it is "soinappropriate or unwarranted under established Departmental practices,” id.§ 600.7(b) except that if the Attorney General makes that determination, he mustnotify Congress of his decision to countermand the Special Counsel, id. § 600.9.Distilled down for present purposes, the Special Counsel Regulations mandate that theSpecial Counsel be selected from outside the Department, and then they empower that outsideattorney to exercise "all investigative and prosecutorial functions of any United States Attorney"within his jurisdiction. Id. § 600.6.9

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 10 of 93III.Independent Counsel Act, Morrison v. Olson, and Lapse of Independent CounselActPrior to promulgation of the Special Counsel Regulations—specifically, from 1978through 1999 (with a two-year gap between 1992 and 1994)—there was a statute that expresslyauthorized the appointment of independent counsels. That statute was the now-expiredIndependent Counsel Act, passed as part of the Ethics in Government Act of 1978. Pub. L. No.95–521, §§ 601-04, 92 Stat. 1824, 1867–75, as amended by Pub. L. No. 97-409, 96 Stat. 2039(1983), Pub. L. No. 100–191, 101 Stat. 1293 (1987), Pub. L. No. 103–270, 180 Stat. 732 (1994).Under the now-expired Independent Counsel Act, Congress authorized the AttorneyGeneral after finding "reasonable grounds to believe that further investigation [was]warranted" to request that a three-judge panel (termed “division of the court") appoint an“independent counsel" to "fully investigate and prosecute" violations of federal criminal law bycertain categories of executive persons, including Presidents and former Presidents for a year afterleaving office. 28 U.S.C. § 591(a)–(b); id. § 592(c)(1)(A), (d). Under that framework, the judicialdivision would "appoint an appropriate independent counsel" from outside the United Statesgovernment and “define that independent counsel's prosecutorial jurisdiction." Id. § 593(b)(1)—(2); see also id. § 593(c) (authorizing judges to "expand the prosecutorial jurisdiction of anindependent counsel"). Once appointed, the independent counsel would have the "full power andindependent authority to exercise all investigative and prosecutorial functions and powers of theDepartment of Justice, the Attorney General, and any other officer or employee of the Departmentof Justice." Id. § 594(a).The legality of the Independent Counsel Act took center stage in Morrison v. Olson, 487U.S. 654 (1988), a suit challenging and upholding the statute under the Appointments Clause and10

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 11 of 93other constitutional provisions and principles. In 1994, after Morrison, Congress reauthorizedthe Independent Counsel Act in accordance with its five-year sunset provision. 28 U.S.C. § 599.9But then in 1999, when the matter of reauthorization returned to the legislative table—and in thewake of meaningful criticism of the Act 10_Congress let the Act expire and has never reauthorizedit since. At that time, then-Attorney General Janet Reno opposed reauthorization in a publicstatement to Congress. 11 Attorney General Reno expressed various criticisms of the Act¹² andcalled for a return to what she described as a "non-statutory independent counsel" built on a set ofpreexisting regulatory procedures that were premised on the Attorney General's “authority to8 The Supreme Court rejected related challenges to the appointment under Articles II and III of theConstitution. Id. at 684, 678-696.9 Congress reauthorized the Act in 1983 and 1987 but then let it expire in 1992, ultimatelyreauthorizing it in 1994. See Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, 96 Stat. 2039 (1983); Independent Counsel Reauthorization Act of 1987, P.L. 100-191, 101Stat. 1293 (1987); Independent Counsel Reauthorization Act of 1994, P.L. 103-270, 108 Stat. 732(1994).10 Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2135–2137 (1998) (recommending that Congress enact an amended statute authorizing the President toappoint a special counsel, with advice and consent of Senate).11 See Statement of Attorney General Janet Reno Concerning the Independent Counsel Act,Committee on Governmental Affairs, United States Senate (Mar. 17, 1999), available athttps://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm.12 Attorney General Reno observed that the Act "distort[ed]" the process of prosecutorial discretionby "creat[ing] a new category of prosecutors” with “no practical limits on their time or budgets,"thus artificially incentivizing prosecution; vested an independent counsel “with the full gamut ofprosecutorial powers, but with little of its accountability"; applied too broadly to various categoriesof public officials, most of whom could be prosecuted by the Department of Justice withoutconflicts; contained an unduly broad and malleable “triggering mechanism,” resulting inappointments that ordinarily would not have been sought; created disputes about the independentprosecutor's jurisdiction; made removal of an independent counsel by the Attorney Generalpolitically difficult; and contained a final-report requirement that “created a forum for unfairlyairing a target's dirty laundry," among other issues. Id.11

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 12 of 93appoint a special prosecutor when the situation demands it.” Id. Then, a day after the IndependentCounsel Act expired, the same Special Counsel Regulations described above came into being to"replace the procedures for appointment” under the lapsed Act. See 64 Fed. Reg. 37038-01.As noted, the Special Counsel Regulations have remained in place without change sincetheir effective date in July 1999, with at least one unsuccessful legislative effort in 2019 to enacta special counsel statute. 13 No such special counsel statute exists today, and no such statute existedin November 2022 when Attorney General Garland issued the Appointment Order.APPOINTMENTS CLAUSE DISCUSSIONI.Background Legal PrinciplesArticle II, Section 2, Clause 2:He shall have Power, by and with the Advice and Consent of the Senate, to makeTreaties, provided two thirds of the Senators present concur; and he shallnominate, and by and with the Advice and Consent of the Senate, shall appointAmbassadors, other public Ministers and Consuls, Judges of the supreme Court,and all other Officers of the United States, whose Appointments are not hereinotherwise provided for, and which shall be established by Law: but the Congressmay by Law vest the Appointment of such inferior Officers, as they think proper, inthe President alone, in the Courts of Law, or in the Heads of Departments.Art. II, § 2, cl. 2.The Appointments Clause “prescribes the exclusive means of appointing ‘Officers of theUnited States."" Lucia v. Sec. & Exch. Comm'n, 585 U.S. 237, 244 (2018). An "Officer of theUnited States," as distinct from a non-officer employee, is any appointee who exercises"significant authority pursuant to the laws of the United States," Buckley v. Valeo, 424 U.S. 1, 126(1976), and who occupies a “continuing' position established by law,” Lucia, 585 U.S. at 245(quoting United States v. Germaine, 99 U.S. 508, 511–12 (1878)); Edmond v. United States, 52013 See S. 71, 116th Cong. (2019) (proposed legislation copying Special Counsel Regulations almostverbatim).12

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 13 of 93U.S. 651, 662 (1997) (“The exercise of ‘significant authority pursuant to the laws of the UnitedStates; marks, not the line between principal and inferior officer for Appointments Clausepurposes, but rather, as we said in Buckley, the line between officer and nonofficer." (quotingBuckley, 424 U.S. at 126)).The Appointments Clause establishes "two classes" of Constitutional officers: “principal”officers and "inferior” officers. Germaine, 99 U.S. at 509-10.14 Principal officers must beappointed by the President, with the advice and consent of the Senate. Art. II, § 2, cl. 2; Edmond,520 U.S. at 659; United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021). That mechanism-Presidential nomination and Senatorial confirmation—is the "default manner of appointment" forprincipal and inferior officers. Arthrex, Inc., 594 U.S. at 12. But the Appointments Clauseprovides another means to facilitate inferior-officer appointments, and it does so through the so-called "Excepting Clause." Edmond, 520 U.S. at 660. That clause permits Congress—"by law,"and as it "thinks proper”-to “vest” the appointment of such inferior officers in three places, andonly three places: “in the president alone, in the Courts of Law, or in the Heads of Departments."Art. II, § 2, cl. 2. But “any decision to dispense with Presidential appointment and Senateconfirmation is Congress's to make, not the President's.” Weiss v. United States, 510 U.S. 163,187 (1994) (Souter, J., concurring) (emphasis added); United States v. Perkins, 116 U.S. 483, 485(1886) ("The head of a department has no constitutional prerogative of appointment to officesindependently of the legislation of congress, and by such legislation he must be governed, not onlyin making appointments, but in all that is incident thereto.”).Importantly, the Framers considered, and initially maintained, a proposal by which thePresident alone would have had the authority to "appoint officers in all cases not otherwise14 The principles governing inferior versus principal officer are explored below. Infra pp. 67–80.13

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 14 of 93provided for by this Constitution."" Morrison, 487 U.S. at 675 (quoting 1 Records of the FederalConvention of 1787, pp. 183, 185 (M. Farrand ed. 1966)). That proposal, however, was replacedon September 15, 1787, when Gouverneur Morris moved to add the Excepting Clause to ArticleII, which was adopted shortly thereafter. That left Congress with an important—thoughcirc*mscribed role in vesting appointment authority for inferior officers. Id. The Framers'rejection of unilateral executive-appointment authority traces its roots to the American colonialexperience with the English monarchy and to the Framers' desire to limit executiveaggrandizement by requiring shared legislative and executive participation in the area ofappointments. See Edmond, 520 U.S. at 559-660; Freytag v. Comm'r, 501 U.S. 868, 884 (1991)(examining historical sources on the subject of executive appointment-power abuses); Weiss, 510U.S. at 184 (1994) (Souter, J., concurring) (discussing Framers' awareness of the Englishmonarchy's pre-revolutionary "manipulation of official appointments" and correspondingrecognition "that lodging the appointment power in the President alone would pose much the samerisk as lodging it exclusively in Congress: the risk of an incautious or corrupt nomination."(internal quotation marks and brackets omitted)); Trump v. United States, 144 S. Ct. 2312, 2349(2024) (Thomas, J., concurring).For these and other reasons, and as the Supreme Court has emphasized, the AppointmentsClause is "more than a matter of ‘etiquette or protocol'; it is among the significant structuralsafeguards of the constitutional scheme." Edmond, 520 U.S. at 659 (quoting Buckley, 424 U.S. at124 (emphasis added)); see Buckley, 424 U.S. at 132 (referring to the Appointments Clause assetting forth "well-established constitutional restrictions stemming from the separation ofpowers”). Indeed, it is rooted in the separation of powers fundamental to our system of governmentand to the limitations built into that structure—all of which aim to prevent one branch from14

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 15 of 93aggrandizing itself at the expense of another. Freytag, 501 U.S. at 878 ("The roots of theseparation-of-powers concept embedded in the Appointments Clause are structural and political.Our separation-of-powers jurisprudence generally focuses on the danger of one branch'saggrandizing its power at the expense of another branch."). The Appointments Clause alsopreserves "the Constitution's structural integrity by preventing the diffusion of the appointmentpower" and thus enhancing democratic accountability. Id. at 878; id. at 884-86 (explaining thatthe Appointments Clause protects democratic accountability by limiting “the distribution of theappointment power” to “ensure that those who wielded it were accountable to political force andthe will of the people"); Ryder v. United States, 515 U.S. 177, 182 (1995).Turning to the Excepting Clause more specifically, the Appointments Clause requires thatany Congressional decision to vest inferior-officer appointment power must be made by “Law”—meaning statutory law, as all parties rightly agree [ECF Nos. 326 pp. 4–5; ECF No. 374 pp. 3–4].Art. II, § 2 cl. 2. This “Law,” it bears noting, is a means by which Congress, in the words of theClause, can express its determination of whether it is “proper” to vest such appointment power inone of the three circ*mscribed repositories. Id. (providing that "Congress may by Law vest theAppointment of such inferior Officers, as they think proper, in the President alone, in the Courtsof Law, or in the Heads of Departments") (emphasis added). Congress thus retains a critical rolein determining which offices to create and whom to vest with inferior-officer appointment power.And that role cannot be usurped or minimized, for doing so would “breach .. . the nationalfundamental law”” of separation of powers and violate the principle that “[a]ll Legislativepower. . . shall be vested in . . . Congress." Buckley, 424 U.S. at 122 (quoting Hampton & Co. v.United States, 276 U.S. 394 (1928)); see Art. I, § 1 ("All legislative Powers herein granted shallbe vested in a Congress of the United States, which shall consist of a Senate and House of15

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 16 of 93Representatives."). 15 Put another way, there can be no expansion of the vesting power beyondwhat is permitted in the Clause, and there can be no usurpation of the appointment power “byindirection.” Buckley, 424 U.S. at 135–36; Myers v. United States, 272 U.S. 52, 164 (1926) (statingthat the Excepting Clause must be “strictly construed” and not “extended by implication").Pausing for a moment to distill the key principles so far, the following points stand out:The Appointments Clause reflects a carefully crafted system, rooted in the separationof powers, by which the Executive and Legislative branches jointly participate inappointments, exerting limitations upon each other, ensuring “public accountability,"and "curb[ing] Executive abuses." Edmond, 520 U.S. at 659.Congress retains a pivotal role in the appointment sphere, a role that cannot be usurpedor expanded. Freytag, 501 U.S. at 878.The Appointments Clause imposes a mandatory and exclusive procedure that must beenforced according to its plain meaning, without exception. Buckley, 424 U.S. at 127,132, 138-39 (rejecting effort to read Appointments Clause “contrary to its plainlanguage" and insisting upon strict compliance with the Clause); Myers, 272 U.S. at164 (stating that the Appointments Clause must be "strictly construed" and not"extended by implication").There is an additional background legal topic, and it concerns the degree of clarity withwhich Congress must speak when expressing its intent to “vest” inferior-officer appointmentpower. In other words, should courts apply a "clear statement rule" in this context? The Meeseamicus brief urges application of such a rule, arguing that requiring Congress to speak clearlybefore determining that a statute permits deviation from the default appointment method iswarranted to preserve the structural separation-of-powers foundation and federalism features uponwhich the Appointments Clause is built [ECF No. 364-1 pp. 19–20 (advocating for clear-statement15See also Lucia, 585 U.S. at 263–64 (Breyer, J., concurring) (“The use of the words 'by Law' todescribe the establishment and means of appointment of ‘Officers of the United States,' togetherwith the fact that Article I of the Constitution vests the legislative power in Congress, suggests that(other than the officers the Constitution specifically lists) Congress, not the Judicial Branch alone,must play a major role in determining who is an ‘Office[r] of the United States.' And Congress'intent in this specific respect is often highly relevant.").16

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 17 of 93rule but defending position on the basis of ordinary statutory interpretation too)]. See Steven G.Calabresi & Gary Lawson, Why Robert Mueller's Appointment As Special Counsel Was Unlawful,95 Notre Dame L. Rev. 87, 115-16 (2019). Trump appears to agree with these arguments,although not explicitly in "clear statement” terms. And Special Counsel Smith seems to rejectimposition of any rule of construction or presumption [ECF No. 374 pp. 11–14; see ECF No. 647pp. 87-88].Without purporting to survey the Supreme Court's "clear statement” jurisprudence, it isenough to say that clear statement rules have been applied as substantive canons of constructionin various contexts to protect foundational constitutional guarantees, and usually to solve questionsof ambiguity in statutory interpretation. See Amy Coney Barrett, Substantive Canons and FaithfulAgency, 90 B.U. L. Rev. 109, 168 (2010); W. Virginia v. Env't Prot. Agency, 597 U.S. 697, 735–36 (2022) (Gorsuch, J., concurring). 16 Clear statement rules do not require Congress to "use magicwords” or to “state its intent in any particular way,” but they do require Congress to speak clearly―not merely "plausibly"—as discerned through traditional tools of statutory construction. MOACMall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 298 (2023)); Spector v. Norwegian16 These include attempted waivers of federal and state sovereign immunity, Fin. Oversight &Mgmt. Bd. for Puerto Rico v. Centro de Periodismo Investigativo, Inc., 598 U.S. 339, 346 (2023),Dep't of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024), Seminole Tribe ofFla. v. Fla., 517 U.S. 44, 55 (1996); efforts to impose retroactive liability, Landgraf v. USI FilmProducts, 511 U.S. 244, 265–66 (1994); attempts to grant agencies powers of "vast economic andpolitical significance," Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594 U.S. 758,764 (2021); federal preemption of state law and federal efforts to regulate areas of traditional stateresponsibility, Bond v. United States, 572 U.S. 844, 859 (2014), Nixon v. Missouri MunicipalLeague, 541 U.S. 125, 128 (2004), BFP v. Resolution Trust Corporation, 511 U.S. 531, 544(1994); jurisdictional time bars affecting a court's adjudicatory capacity, Wilkins v. United States,598 U.S. 152, 159 (2023); Boechler, P.C. v. Comm'r of Internal Revenue, 596 U.S. 199, 206(2022); and in cases that could be described as implicating the balance between the federalbranches, Kucana v. Holder, 558 U.S. 233, 237 (2010); I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001);Davis v. Passman, 442 U.S. 228, 246–47.17

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 18 of 93Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality opinion). When a clear statement rule doesapply, it can mean that a court chooses a lesser, though still tenable, interpretation of a statute as ameans to protect significant constitutional values. Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023)(Barrett, J., concurring) (noting that “the hallmark of a true clear-statement rule" is where a court"purports to depart from the best interpretation of the text").There are reasons to believe that application of a clear statement rule would apply to theinterpretation of statutes affecting the separation-of-powers balance animating the AppointmentsClause. Clear statement rules, as noted, generally apply "when a statute implicates historically orconstitutionally grounded norms that we would not expect Congress to unsettle lightly." Jones v.Hendrix, 599 U.S. 465, 492 (2023). And separation of powers norms ring strong here, where theSpecial Counsel's proffered statutory interpretations would displace the Senate from its ordinaryand longstanding role of confirming United States Attorneys and give to the Executive seeminglyunchecked power to create offices for outside prosecutors beyond the scheme designed in Title 28of the United States Code. Additionally, there are indications in the language of the AppointmentsClause itself specifically, its repeated reference to "Law” and to Congress's determination ofwhat it “think[s] proper” for vesting purposes—that support requiring Congress to make its intentknown with discernable clarity. Article II, § 2, cl. 2. And then there are cases specifically in theAppointments Clause context-principally Edmond and Weiss, discussed later-where theSupreme Court has insisted upon textual clarity when faced with more ambiguous language.1717 Edmond, 520 U.S. at 656-58 (recognizing clear statute granting appointment power anddeclining to find appointment power in a separate statute lacking similarly clear language); Weiss,510 U.S. at 757 (recognizing that Congress knows how to speak clearly in the appointment contextand then, on the basis of that Congressional know-how, declining to find appointment power instatutes that lacked sufficient precision); Germaine, 99 U.S. at 509-10; Lucia, 585 U.S. at 257(Breyer, J., concurring) (agreeing with majority that Commission did not properly appoint ALJs18

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 19 of 93In any case, despite the appeal of applying a clear statement rule in this constitutionalsetting, the Court finds it unnecessary to do so and would reach the same conclusion in this Orderregardless. Neither party presses hard for or against such a rule; the Supreme Court has notexpressly addressed whether a clear statement rule applies in the context of the AppointmentsClause; and in any case, the Court is satisfied that standard tools of statutory interpretation sufficeto discern whether the "Law" at issue, 28 U.S.C. § 515, 533, evinces a Congressional intent to"vest the Appointment” of inferior Officers in the Attorney General as the Special Counselsuggests. Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (finding resort to clear statement ruleunnecessary because the text and structure of the statute at issue showed that Congress did notintend a substantial alteration in federal-state relations).II.Statutory Structure of Justice Department and Attorney General's AppointmentAuthorityBefore delving into the particular statutes cited in the Appointment Order, the Courtsurveys the statutory structure of the Department of Justice, focusing on provisions that authorizethe Attorney General to appoint officers and/or employees, and also noting Congress's displayedlegislative agility in prescribing appointment methods within that structure. Some of this materialfeatures later in this Order, but the Court deems it helpful to provide initial structural context forthe discussion to follow.Title 28 of the United States Code governs the Department of Justice, an executivedepartment of the United States, 28 U.S.C. § 501, and it contains various structural chapters. Forpresent purposes, the most important are Chapter 31 for the Attorney General, 28 U.S.C. § 501-530D; Chapter 33 for the Federal Bureau of Investigation, 28 U.S.C. §§ 531–540d; and Chapterand then observing that "no other statutory provision . . . would permit the Commission to delegatethepower to appoint its administrate law judges to its staff").19

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 20 of 9335 for United States Attorneys, 28 U.S.C. §§ 541-550. Title 28 also includes chapters for theUnited States Marshals Service, 28 U.S.C. §§ 561-569; United States Trustees, 28 U.S.C. §§ 581-589b; the now-expired Independent Counsel, 28 U.S.C. §§ 591–599; and the Bureau of Alcohol,Tobacco, Firearms, and Explosives, 28 U.S.C. § 599a-599b.In Chapter 31, Congress requires the President to "appoint, with the advice and consentof the Senate, an Attorney General of the United States" to serve as "head of the Department ofJustice." Id. § 503. Congress then provides for the Presidential appointment of various officerswithin the Department, all expressly "by and with the advice and consent of the Senate." Id.§§ 504, 504a, 505, 506. These include a Deputy Attorney General, id. § 504; an AssociateAttorney General, id. § 504a; a Solicitor General, id. § 505; and eleven Assistant AttorneysGeneral, id. § 506; see also § 507. In each of these statutes, Congress employs statutory languagefully tracking the default manner of appointing principal officers in the Appointments Clause. Bycontrast, in a separate section of the same chapter, Congress permits the Attorney General toappoint an Assistant Attorney General for Administration, a non-officer employee whom Congressexpressly places in the competitive service. Id. § 507.Chapter 33 governs the Federal Bureau of Investigation (FBI). The FBI is headed by adirector appointed by the President, by and with the advice and consent of the Senate, for a termof ten years, who is paid under the Federal Executive Salary Schedule. P. L. 90-351, Title VI, §1101, 82 Stat. 236 (1968).18 Chapter 33 also authorizes the Attorney General, within his controlof the FBI, and as discussed later in connection with 28 U.S.C. § 533, to "appoint officials” to"detect and prosecute crimes against the United States," to "assist in the protection" of the18 Prior to 1976, Congress authorized the Attorney General to appoint the FBI director, but then itswitched course to the default appointment method. 28 U.S.C. § 532; see Oct. 15, 1976, P. L. 94-503, Title II, § 203, 90 Stat. 2427.2020

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 21 of 93President and the Attorney General, and to conduct investigations "regarding official matters underthe control" of the Departments of Justice and State. 28 U.S.C. § 533.Chapter 35 relates to United States Attorneys, and it directs the President, in mandatoryterms, to "appoint, by and with the advice and consent of the Senate, a United States attorney foreach judicial district”—further specifying that such United States attorneys “shall be appointed fora term of four years" and shall be “subject to removal by the President." 28 U.S.C. § 541. It isundisputed, and correct, that all United States Attorneys (93 currently) have been appointed by thePresident and confirmed by the Senate throughout our Nation's history, except that Congress haspermitted the Attorney General to appoint interim United States Attorneys with specificrestrictions. 28 U.S.C. § 546 (limiting duration of terms and prohibiting Attorney General fromappointing an interim United States Attorney "whose appointment by the President to that officethe Senate refused to give advice and consent"). It also bears noting, in the context of the AttorneyGeneral's appointment authority, that 28 U.S.C. § 543 (within Chapter 35 for United StatesAttorneys) allows the Attorney General to "appoint attorneys to assist United States attorneyswhen the public interest so requires, including the appointment of tribal prosecutors," furtherindicating that such special attorneys are “subject to removal by the Attorney General.” 28 U.S.C.§ 543(a) (b). As discussed further infra, Special Counsel Smith does not rely on 28 U.S.C. § 543to provide authority for his appointment, and he disavows any notion that he is "assisting" a UnitedStates attorney. 1919 Chapter 37 addresses the United States Marshals Service and provides for a Director of theService who is "appointed by the President, by and with the advice and consent of the Senate," 28U.S.C. § 561, along with individual United States marshals in each judicial district, all of whomalso are appointed by the President and confirmed by the Senate. Id. Chapter 39 is designated forUnited States Trustees, who are appointed by the Attorney General for various specified judicialdistricts, and who are "subject to removal by the Attorney General.” 28 U.S.C. § 581. Chapter40A establishes “the Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF],” which is21

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 22 of 93There is one last piece in the United States Code in which the Attorney General is givenappointment authority, and it is codified at 18 U.S.C. § 4041. That section, located within thePrisons and Prisoner Part of Title 18, and passed in 1948, authorizes the Attorney General toappoint the director of the Bureau of Prisons (BOP) who serves “directly under the AttorneyGeneral," and then also permits the Attorney General to “appoint such additional officers andemployees as he deems necessary.” 18 U.S.C. § 4041.There are no other provisions in the United States Code of which the Court is aware thatpermit the Attorney General to appoint “officers" or employees.III.Analysis of Statutes Cited in Appointment OrderThe Court now proceeds to evaluate the four statutes cited by the Special Counsel aspurported authorization for his appointment-28 U.S.C. §§ 509, 510, 515, 533. The Courtconcludes that none vests the Attorney General with authority to appoint a Special Counsel likeSmith, who does not assist a United States Attorney but who replaces the role of United StatesAttorney within his jurisdiction.In considering each of these four provisions, the Court “begins where all such inquiriesbegin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489U.S. 235, 241 (1989). This requires the Court to interpret statutory language according to itsordinary meaning, and to read it within the specific context in which it appears and within thebroader context of the statute as a whole. See, e.g., Sw. Airlines Co. v. Saxon, 596 U.S. 450, 455(2022); King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that astatute is to be read as a whole, since the meaning of statutory language, plain or not, depends onheaded by a Director who “shall be appointed by the President, by and with the advice and consentof the Senate." 28 U.S.C. § 599A(a)(1)–(2).2222

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 23 of 93context" (internal citation omitted)); Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1192(11th Cir. 2019) (“The whole-text canon refers to the principle that a judicial interpreter shouldconsider the entire text, in view of its structure and of the physical and logical relation of its manyparts, when interpreting any particular part of the text.” (internal quotation marks and bracketsomitted)).A. 28 U.S.C. § 509The first statute cited in the Appointment Order is 28 U.S.C. § 509, a generic provisionvesting DOJ's functions in the Attorney General. It is titled "Functions of the Attorney General,"and it provides, in full, as follows:All functions of other officers of the Department of Justice and all functions ofa*gencies and employees of the Department of Justice are vested in the AttorneyGeneral except the functions-(1) vested by subchapter II of chapter 5 of title 5 in administrative lawjudges employed by the Department of Justice;(2) of the Federal Prison Industries, Inc.; and(3) of the Board of Directors and officers of the Federal Prison Industries,Inc.28 U.S.C. § 509.Special Counsel Smith neither argues that Section 509 establishes an office, nor that itgrants officer-appointing power to the Attorney General. Indeed, it does neither of these. It is ageneral statute simply declaring that the Attorney General is imbued with all functions of theDepartment and its agencies except in the limited instances of administrative law judges andprivate federal prisons. No more discussion about Section 509 is necessary.23

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 24 of 93B. 28 U.S.C. § 510The second statute cited in the Appointment Order is 28 U.S.C. § 510, a general provisionallowing the Attorney General to delegate his functions to officers, employees, and agencies ofDOJ. The full text of Section 510, titled “Delegation of authority,” provides as follows:The Attorney General may from time to time make such provisions as he considersappropriate authorizing the performance by any other officer, employee, or agencyof the Department of Justice of any function of the Attorney General.28 U.S.C. § 510 (emphasis added).Special Counsel Smith does not classify or rely on Section 510 as an officer-appointing oroffice-creating statute, nor is it. Using similarly general phrasing as Section 509, Section 510merely gives the Attorney General flexibility to authorize existing DOJ officers, employees, oragencies to perform the functions of the Attorney General, consistent with the nature of thosefunctions. See Calabresi & Lawson, supra at 107 (noting the authority granted in Section 510 todelegate "delegable functions" (emphasis in original)). Special Counsel Smith, as all agree, andas required by the extant Special Counsel Regulations, was “selected from outside the UnitedStates Government." 28 C.F.R. § 600.3(a). No more discussion about Section 510 is necessary.C. 28 U.S.C. § 515The third statute cited in the Appointment Order is 28 U.S.C. § 515, titled "Authority forlegal proceedings; commission, oath, and salary for special attorneys." 28 U.S.C. § 515. Itcontains two subsections, quoted fully below:(a) The Attorney General or any other officer of the Department of Justice, or anyattorney specially appointed by the Attorney General under law, may, whenspecifically directed by the Attorney General, conduct any kind of legalproceeding, civil or criminal, including grand jury proceedings and proceedingsbefore committing magistrate judges, which United States attorneys areauthorized by law to conduct, whether or not he is a resident of the district inwhich the proceeding is brought.2424

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 25 of 93(b) Each attorney specially retained under authority of the Department of Justiceshall be commissioned as special assistant to the Attorney General or specialattorney, and shall take the oath required by law. Foreign counsel employed inspecial cases are not required to take the oath. The Attorney General shall fixthe annual salary of a special assistant or special attorney.28 U.S.C. § 515. Although Special Counsel Smith relies primarily on Section 515(b), the Courtanalyzes each subsection in turn.i.Section 515(a)Section 515(a) does not authorize the creation of any office and does not authorize theAttorney General to appoint anyone. Nor does the Special Counsel meaningfully argue that itdoes. As its text indicates, Section 515(a) simply declares that the Attorney General, any "officerof the Department of Justice," or any "attorney specially appointed by the Attorney General underlaw" referring to previously existing special attorneys appointed under statutory law—areauthorized to conduct legal proceedings "which United States attorneys are authorized by law toconduct," regardless of whether the litigating officer or special attorney resides in the district inwhich the proceeding is brought. 28 U.S.C. § 515(a). 20 This is a provision conferring territorialflexibility to the Attorney General; it permits the Attorney General to use DOJ officers andpreviously appointed special attorneys to litigate on behalf of the United States, regardless ofresidency. No more can be inferred from the text of Section 515(a), and again, Special CounselSmith does not meaningfully rely on it as a source of officer-appointing power.20 To the extent Special Counsel Smith insinuates that “under law” in Section 515(a) does notrequire what it plainly says that special attorneys must be appointed by the Attorney Generalunder statutory law [ECF No. 374 p. 12]—no basis is provided for that atextual suggestion.Trump, 2024 WL 3237603, at *27 (Thomas, J., concurring). The phrases “under law" in Section515(a) and "under authority of the Department of Justice" in Section 515(b) plainly refer tostatutory law outside of Section 515. Any other reading would render these phrases surplusage.See Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 621 (D.D.C. 2018) (citing TRW Inc.v. Andrews, 534 U.S. 19, 31 (2001)).25

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 26 of 93ii.Section 515(b)The Court thus shifts to Section 515(b), where the Special Counsel devotes more attention.According to the Special Counsel, Section 515(b) “gives the Attorney General authority to appoint‘special attorneys' like the Special Counsel" [ECF No. 374 p. 11]. This is so, he contends, because(1) "[s]pecially retained under authority of the Department of Justice' necessarily means speciallyretained by the Attorney General, who is head of the Department of Justice and vested with all ofits functions and powers" [ECF No. 374 p. 11 (emphasis in original, quoting 28 U.S.C. § 515(b))];(2) the terms “commissioned” and “specially retained” in the statute effectively mean “appoint”[ECF No. 374 pp. 11–12; see ECF No. 647 pp. 62-63]; and (3) the history of Section 515(b)“confirms that it provides appointment power” [ECF No. 374 p. 14; see, e.g., ECF No. 647 p. 56].These arguments cannot be squared with the statutory text, context, or history.a. Ordinary MeaningSection 515(b), read plainly, is a logistics-oriented statute that gives technical andprocedural content to the position of already-"retained" "special attorneys” or “special assistants"within DOJ. It specifies that those attorneys-again already retained in the past sense-shall be"commissioned," that is, designated, or entrusted/tasked, to assist in litigation (more on"commissioned" below). Section 515(b) then provides that those already-retained specialattorneys or special assistants (if not foreign counsel) must take an oath; and then it directs theAttorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) givethe Attorney General independent power to appoint officers like Special Counsel Smith—oranyone else, for that matter.26

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 27 of 93This understanding of Section 515(b) as a descriptive statute about already-retainedattorneys―rather than as a source of new appointment power—is confirmed by additional textualfeatures within the provision itself.First, as the district court in Concord Mgmt. & Consulting LLC, observed in evaluating asimilar challenge, and as alluded to above, the statute uses the past participle tense of the wordretain. 317 F. Supp. 3d at 621. Congress's use of a verb tense can be significant in evaluatingstatutes. See, e.g., Carr v. United States, 560 U.S. 438, 448 (2010) (describing that "varied” verbtenses communicate different meanings). And that is so here, where the text of Section 515(b)plainly does not announce or give anyone the active power to "retain" anyone afresh but simplynotes specific requirements or features about attorneys already "specially retained" in the past"under the authority of the Department of Justice.” Concord Mgmt. & Consulting LLC, 317 F.Supp. 3d at 621 (observing that regardless of whether Section 515(b) refers to past or presentconditions, it "does not appear to convey the power to bring those conditions about”).Second, absent from Section 515(b) is any reference to the verb “appoint," an active verbused in the Appointments Clause itself. Art. II, § 2, cl. 2. To justify that void, the Special Counselsays the Court should read the terms “specially retained” and “commissioned" in Section 515(b)as the functional equivalent of “appoint.” The Court declines to engage in such linguisticdistortion, nor is it aware of any vesting statute that uses those verbs as replacements for the verb"appoint." For starters, the term “appoint," on the one hand, and the terms “retain” or“commission,” on the other, are not invariably interchangeable. See In re Walter Energy, Inc., 911F.3d 1211, 1143 (11th Cir. 2018) ("When a statute does not define a term, we often look todictionary definitions for guidance."). Definitions of the verb "appoint" describe the filling of amore enduring and often formal or official role or office. Black's Law Dictionary (4th ed. 1951)27

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 28 of 93(defining "appoint" as "[t]o designate, ordain, prescribe, nominate,” and explaining that "appoint'is used where exclusive power and authority is given to one person, officer, or body to name personto hold certain offices"); see Merriam-Webster's Collegiate Dictionary (11th ed. 2003) (“to nameofficially"); Oxford American Dictionary (3d ed. 2010) ("assign a job or role (to someone)"). Thisdiffers from definitions of “retain” and “commission," which often connote a narrower, mission-or task-specific hiring or charge. Retain, Webster's Third New International Dictionary (1961)("to keep in pay or in one's services" or "to employ (a lawyer) by paying a preliminary fee thatsecures a prior claim upon services in case of need"); commission, id. ("to endow with effectiveright or power" or "to appoint to a certain task, mission, function, or duty”); retain, Black's LawDictionary (4th ed. 1951) (“[t]o continue to hold, have, use, recognize, etc., and to keep," and "[t]oengage the services of an attorney or counsellor to manage a cause”). 21In any case, even accepting some degree of overlap among some of these definitions, itremains the case that the Supreme Court has been apprehensive to accept other statutory terms asstand-ins for the word "appoint” in the Appointments Clause context, recognizing that Congressconsistently uses the word "appoint" rather than “terms not found within the AppointmentsClause." See Edmond, 520 U.S. at 657-58 (holding that statute's use of "assign" did not vest21Many definitions of the transitive verb “commission” merely invoke the noun form of the word,"commission." E.g., Webster's Seventh New Collegiate Dictionary (1969) (defining the verb"commission" as “to furnish with a commission"); Webster's Third New International Dictionary(1961) (similar). Notably, though, definitions of the noun “commission" convey the same task-specific as opposed to role-oriented-meaning as the verb. See Webster's Seventh NewCollegiate Dictionary (1969) (defining noun “commission” as “a formal written warrant grantingthe power to perform various acts or duties” or “an authorization or command to act in a prescribedmanner or to perform prescribed acts"); Webster's Third New International Dictionary (1961)(defining noun "commission” as “a formal written warrant or authority granting certain powers orprivileges and authorizing or commanding the performance of certain acts or duties,” referencing"an order to perform a particular task or carry out a work").28

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 29 of 93officer-appointing authority); Weiss, 510 U.S. at 171–72.22 Moreover-for the same verb-tensereasons as stated above-whatever possible linguistic overlap might exist between the present-tense formulations of the verbs "appoint," "retain,” or “commission," Section 515(b) does not usethem in that format, using instead the past participle adjective application.All of this yields the following in terms of ordinary meaning for the terms “speciallyretained" and "commissioned as ... special attorney” in Section 515(b): (1) “retained” essentiallymeans employed or hired; (2) "commissioned” means designated, classified, or tasked in a role;and (3) together those phrases transmit the fairly mundane, descriptive point that already-hiredattorneys within the Department shall be classified as special assistants or special attorneys andshall take an oath and have a fixed salary. That is all that fairly can be extracted from Section515(b). There is no granting of appointment power in this language.Nor, as the Special Counsel suggests, does the historical pedigree of Presidential"commissions" dating back to Marbury v. Madison, 5 U.S. 137 (1803), transform the adjectivephrase "shall be commissioned... as special attorney" into an implicit grant of officer-appointment power for the Attorney General [ECF No. 374 p. 11]. True, as Marbury informs, the"last act to be done by the President" in making an appointment for a constitutional officer is "thesignature of the commission," thus demonstrating his action “on the advice and consent of thesenate to his own nomination.” Id. at 157 (emphasis added); see Art II, § 2, cl. 3 (RecessAppointment Clause). But nothing in the language of Section 515(b) speaks in terms of atraditional Presidential appointment with Senate confirmation followed by the signing of an22 This is not to suggest, of course, that an appointment statute has to use "magic words" lest it failthe "appointment test." See Lucia, 585 U.S. at 264 (Breyer, J., concurring). But, as noted, theSupreme Court has demonstrated a preference for language that tracks the constitutional text, seeEdmond, 520 U.S. at 657-58; Weiss, 510 U.S. at 171–72; Germaine, 99 U.S. at 510, and so hasCongress, see supra pp. 47-50.2929

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 30 of 93officer-level commission, as was the case in Marbury. Far from it, for all of the reasons alreadystated. Simply put, whatever historical relevance there is to take from the fact that Presidents—not Attorneys General—sign commissions for constitutional officers, it does nothing to alter theordinary meaning of Section 515(b).b. Statutory ContextThe broader statutory context of Title 28—and the use of the term "special attorney" withinthat context, in particular, in Section 543—also refutes the Special Counsel's untenable reading ofSection 515(b). It is an axiom of statutory interpretation that “identical words used in differentparts of the same act are intended to have the same meaning."" See, e.g., Gustafson v. Alloyd Co.,513 U.S. 561, 570 (1995) (citing Dep't of Revenue of Oregon v. ACF Indus., Inc., 510 U.S. 332,342 (1994)); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 231 (2020) (consistent usage canon); Dealv. United States, 508 U.S. 129, 132 (1993) (noting that it is a “fundamental principle of statutoryconstruction (and, indeed, of language itself) that the meaning of a word cannot be determined inisolation, but must be drawn from the context in which it is used."). It is also well settled thatstatutory provisions should be interpreted harmoniously, not in contradictory fashion, afterconsidering the whole statutory scheme and context holistically. United Sav. Ass'n of Tex. v.Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); Panama Ref. Co. v. Ryan, 293U.S. 388, 439 (1935) (Cardozo, J., dissenting). These guideposts matter much here.Section 515 was enacted in 1966 as part of a wide-scale government reorganization actacross the Executive branch. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378. See infrapp. 34–36 (discussing predecessor statutory history of Section 515). As relevant to Title 28, thatlegislation contained two other explicit references to "special attorneys" in the Department, bothof which remain in force today: Section 543 and 519. Id. §§ 515, 519, 543, 80 Stat. 378, 611–618.3030

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 31 of 93Section 543-titled "Special attorneys”—gives the Attorney General authority to "appointattorneys to assist United States attorneys when the public interest so requires." 28 U.S.C. § 543.And then Section 519 directs the Attorney General to supervise all litigation involving the UnitedStates or its officers by specifically providing that he “shall direct all United States attorneys,assistant United States attorneys, and special attorneys appointed under section 543 of this title inthe discharge of their duties." 28 U.S.C. § 519 (emphasis added).The term “special attorney” thus has a known meaning in Title 28 that coincidesharmoniously with the broader statutory context. That meaning, per Section 543, consists ofattorneys appointed by the Attorney General to assist United States Attorneys a role SpecialCounsel Smith expressly disclaims [ECF No. 647 pp. 57-58]. This leaves Special Counsel Smithto offer a highly strained reading of “special attorney” in Section 515(b), which is that the termused in that provision somehow denotes a different category of “special attorney" than whatCongress specifically created in Section 543 and then referenced again in Section 519-—all withinthe same public law [see ECF No. 647 pp. 57–58]. Neither the statutory text of Section 515 norits statutory context gives any reason to believe such discordancy matches congressional intent.United States v. Castleman, 134 S. Ct. 1405, 1417 (2014) (“[T]he presumption of consistent usage[is] the rule of thumb that a term generally means the same thing each time it is used [and] mostcommonly applie[s] to terms appearing in the same enactment.") (Scalia, J., concurring) (emphasisadded). Nor is there any basis to believe that Congress, when it expressly designated the categoriesof attorneys within the Department whose duties the Attorney General must direct somehowomitted a separate fourth category of United States Attorney-like special counsels nowhere created31

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 32 of 93in the 1966 Act. If Congress intended “special attorney” to mean something different in Section515(b) than in Section 543, it could have used different language, but it did not.23Zooming out beyond Sections 543 and 519 as contextual counterpoints, Congressrepeatedly has demonstrated its ability to imbue the Attorney General with appointment powerover officers and employees-yet Section 515 looks nothing like those examples. In Section546(a), for instance, codified in the same enactment as Section 515, Congress authorized theAttorney General to “appoint an [interim] United States attorney for the district in which the officeof United States attorney is vacant." Id. § 546(a). Likewise, in 18 U.S.C. § 4041, Congresspermitted the Attorney General to "appoint such additional officers and employees as he deemsnecessary [within BOP].” 18 U.S.C. § 4041. And in Section 542(a), Congress authorized theAttorney General to "appoint one or more assistant United States attorneys." 28 U.S.C. § 542(a).Even more, Congress has shown its facility in vesting appointment power in Heads of Departmentsacross the Executive Branch, ranging from the Secretary of Education, to Agriculture, toTransportation, and to Health and Human Services. See 7 U.S.C. § 610(a) (“The Secretary ofa*griculture may appoint such officers and employees. ..."); 18 U.S.C. § 4041 (“The AttorneyGeneral may appoint such additional officers and employees as he deems necessary."); 49 U.S.C.§ 323(a) ("The Secretary of Transportation may appoint and fix the pay of officers and employeesof the Department of Transportation and may prescribe their duties and powers."); 20 U.S.C.§ 3461(a) ("The Secretary is authorized to appoint and fix the compensation of such officers andemployees, including attorneys, as may be necessary to carry out the functions of the Secretaryand the Department."); 42 U.S.C. § 913 (The Secretary [of Health and Human Services] is23It is true that Section 519 contains a cross-reference to Section 543 whereas Section 515(b) doesnot, but that technical omission in a numerical cross-reference simply cannot overcome thepresumption of consistent usage of "special attorney" in the same enactment.32

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 33 of 93authorized to appoint and fix the compensation of such officers and employees. . . ."). None ofthose examples bears any resemblance to Section 515, and notably, all of the examples use thepresent tense, unlike Section 515. See Carr, 560 U.S. at 449–451.The Special Counsel has no response to this clear pattern of congressional appointmentlanguage, presumably on the general theory that Congress can avail itself of different legislativephrasing as it pleases [ECF No. 374]. But statutory context cannot be discounted, nor can clearstatutory patterns be ignored. Simply put, the Special Counsel's strained inferences about Section515 do not make sense when viewed against the backdrop of Congress's clear and consistent abilityto legislate in the appointments arena.c. History: Section 515's predecessor statutes, and the historical useof special-counsel-like figures.Finding little support in the plain language of Section 515(b), the Special Counsel makes aseries of unconvincing historical arguments that fail upon close scrutiny [ECF No. 374 p. 14 ("Thehistory of Section 515 removes any question that it authorizes the Attorney General to appointspecial attorneys such as the Special Counsel.")]. The relevant history, according to SpecialCounsel Smith, shows that Congress tacitly authorized- -or silently acquiesced to the use ofSection 515 (or its predecessor statutes) to appoint “special attorneys" like himself [ECF No. 374pp. 14–16; see ECF No. 647 pp. 58-62]. Upon review of the murky historical record, the Courtdetermines that, whatever themes can be drawn from that background, they cannot supplant theplain language of the statute itself, which clearly does not vest the Attorney General with suchauthority. See In re BFW Liquidation, LLC, 899 F.3d 1178, 1189–90 (11th Cir. 2018).The Special Counsel's historical argument breaks into two parts: (1) Section 515'sstatutory history going back to 1870, and (2) the historical use of “special attorney”-like figuresthroughout American history.3333

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 34 of 93i. Statutory HistoryThe currently codified version of Section 515(b) can be traced back to the establishment ofthe Department of Justice in 1870. See An Act to Establish the Department of Justice, ch. 150, 16Stat. 162, 164–65 (1870) (hereinafter, the "DOJ Act"). The relevant portion of that Act is providedbelow:And be it further enacted, That it shall not be lawful for the Secretary of either ofthe executive Departments to employ attorneys or counsel at the expense of theUnited States; but such Departments, when in need of counsel or advice, shall callupon the Department of Justice, the officers of which shall attend to the same; andno counsel or attorney fees shall hereafter be allowed to any person or persons,besides the respective district attorneys and assistant district attorneys, for servicesin such capacity to the United States, or any branch or department of thegovernment thereof, unless hereafter authorized by law, and then only on thecertificate of the Attorney-General that such services were actually rendered, andthat the same could not be performed by the Attorney-General, or solicitor-general,or the officers of the department of justice, or by the district attorneys. And everyattorney and counselor who shall be specially retained, under the authority of theDepartment of Justice, to assist in the trial of any case in which the government isinterested, shall receive a commission from the head of said Department, as aspecial assistant to the Attorney General, or to some one of the district attorneys,as the nature of the appointment may require, and shall take the oath required bylaw to be taken by the district attorneys, and shall be subject to all the liabilitiesimposed upon such officers by law.Id. at § 17. The latter portion of this section, which largely mirrors the text of the current statute,provides no new insights as to the meaning of Section 515 and contains no indication that any ofthe “specially retained” attorneys “authorized by law” to be hired do anything other than assist theAttorney General in a non-officer capacity. Put another way, nothing in this language showsCongress's intent that “special assistants”—personnel authorized to "assist in the trial of any casein which the government is interested"—would function with the power of a United StatesAttorney.34=4

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 35 of 9324Subsequent enactments do not dictate otherwise. In 1930, Congress added the term"special attorney." Pub. L. No. 71-133, ch. 174, 46 Stat. 170.24 And in 1948, Congress madesome non-substantive changes to simplify the provision's wording. Pub. L. No. 80-773, ch. 646,§ 62 Stat. 869, 985-86. Again, and mindful that "changes in statutory language generally indicatean intent to change the meaning of the statute," Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11thCir. 2010) (citation omitted), these revisions do not indicate that Congress (1) intended the DOJAct to authorize the appointment of private citizens; or (2) envisioned "special attorneys" aspossessing the power or autonomy of contemporary special counsels. Put simply, theseamendments offer nothing new from a textual-analysis standpoint. 25Nevertheless, as Special Counsel Smith sees it, these amendments—and Congress's failureto object to the use of special attorneys in the intervening years—suggest that Congress "ratified"the Executive branch's use of Section 515 for this purpose [ECF No. 647 pp. 58–62; see ECF No.374 pp. 15-16 ("Despite widespread use of special counsels before these enactments. . . Congressnever questioned the Attorney General's power of appointment.")]. For the reasons that follow,24 Although resort to legislative history is unnecessary and generally ill advised, the Court notesthat a House Report accompanying the 1930 amendment suggests that the addition of the phrase"special attorney”—to accompany the already-present “special assistant”—did not effectuate asubstantive change to the DOJ Act: "The bill does not provide authority for any new appointmentsbut merely permits commissions to issue to attorneys as special attorneys in those cases where theAttorney General feels that it is undesirable to use the title of 'special assistant to the AttorneyGeneral." H.R. Rep. No. 71-229 (1930). As far as the Court can tell, the terms “special assistant"and “special attorney” in Section 515 have the same functional meaning except, potentially, inwho they assist special assistants assisting the Attorney General; special attorneys assistingUnited States Attorneys, see 28 U.S.C. § 543—but any technical daylight between those non-officer employees has not been explored in caselaw.25 Special Counsel Smith also describes the statutory history leading to Section 515(a) [ECF No.374 p. 15]. Even if the Court were to accept the inferences drawn by Special Counsel Smith onthis point, Section 515(a)'s predecessor statutes-much like the now-codified provision-havenothing to do with appointment power.35

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 36 of 93the Court declines to interpret Congress's silence on the intermittent, historical use of "specialattorneys” as tantamount to acquiescence here. “Legislative silence is a poor beacon to follow indiscerning the proper statutory route." Zuber v. Allen, 396 U.S. 168, 185 (1969); id. at n.21(explaining that "[t]he verdict of quiescent years cannot be invoked to baptize a statutory glossthat is otherwise impermissible"); cf. Rapanos v. United States, 547 U.S. 715, 749-52 (2006)(discussing the limited utility of "congressional acquiescence"); Regions Bank, 936 F.3d at 1196(same); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985) (“[W]e arechary of attributing significance to Congress' failure to act ."); Bob Jones Univ. v. United...States, 461 U.S. 574, 600 (1983) ("Nonaction by Congress is not often a useful guide . . . .").ii. Historical PracticeSpecial Counsel Smith argues that the use of special attorneys throughout American history"amply confirms the Attorney General's authority to appoint the Special Counsel here" [ECF No.374 p. 16]. The Court disagrees. At most, the history reflects an ad hoc, inconsistent practice ofnaming prosecutors from both inside and outside of government (typically in response to nationalscandal) who possessed wildly variant degrees of power and autonomy. The lack of consistencymakes it near impossible to draw any meaningful conclusions about Congress's approval ofmodern special counsels like Special Counsel Smith—much less its acquiescence to Section 515as a vehicle for such appointments.Special Counsel Smith's broad historical argument proceeds from two mistaken premises.The first is rooted in the notion that “past Attorneys General have ‘made extensive use of specialattorneys" by "drawing on the authority to retain counsel originally conferred in 1870” [ECF No.374 p. 16 (quoting In re Persico, 522 F.2d 41, 45–46 (2d Cir. 1975))]. This incorrectly assumesthat “special attorneys” have consistently been appointed pursuant to Section 515 or one of its36

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 37 of 93predecessor statutes [ECF No. 374 p. 16]. But a review of historical appointments shows a farspottier picture. Some “special attorneys" were appointed by regulation. E.g., 38 Fed. Reg.30,739, amended by 38 Fed. Reg. 32,805 (appointing Leon Jaworski to investigate and prosecutethe Watergate scandal). 26 Some were appointed by statute. E.g., ch. 16, 43 Stat. 6 (1924) (directingPresident Coolidge to appoint, with Senate confirmation, special prosecutors to investigate TeapotDome scandal). Some were appointed by both. See In re Sealed Case, 829 F.2d 50, 51–54 (D.C.Cir. 1987) (explaining how Independent Counsel Lawrence Walsh was appointed under theIndependent Counsel Act and by separate regulation). And some-as far as this Court can tell—were appointed without any formal statutory or regulatory authority at all. See Terry Eastland,Ethics, Politics, and the Independent Counsel 8-9 (1989). 27 Thus, it can hardly be said thatAttorneys General have drawn consistently on Section 515 or its predecessor statutes as a sourceof appointment authority [see ECF No. 374 p. 16].Nor is it true that "past Attorneys General" were solely and exclusively responsible for theact of appointment [see ECF No. 374 p. 16]. Notable nineteenth- and twentieth-century specialprosecutors were appointed directly by U.S. Presidents. Logan, supra at 10, 13, 28-29 (describingappointments by President Grant (with Senate confirmation) and President Truman). 28 Moreover,26 Appointing regulations themselves have cited an inconsistent patchwork of statutory authority.Crucially here, many such regulations did not cite Section 515 (or Section 533). The regulationappointing Special Prosecutor Jaworksi serves as an example. 38 Fed. Reg. 30,739, amended by38 Fed. Reg. 32,805 (citing 28 U.S.C. §§ 509, 510 and 5 U.S.C. § 301). So does the regulationappointing Special Counsel Ken Starr to investigate the Whitewater scandal, which (interestingly)cited Section 543. 28 C.F.R. § 603.1 (citing 28 U.S.C. §§ 509, 510, 543 and 5 U.S.C. § 301).27 See also David A. Logan, Historical Uses of a Special Prosecutor: The Administrations ofPresidents Grant, Coolidge and Truman 7, 28-29 (Congressional Research Service Nov. 23,1973); Andrew Coan, Prosecuting the President 23-40 (2019); [ECF No. 647 pp. 110–11].28 These appointments do not appear to have been made by formal order or regulation.37

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 38 of 93Some werethe practices and protocol for removing such officers varied considerably.removable and were, in fact, removed—at will by Presidents, see id. at 12–13, 33–34 (discussingPresident Grant and Truman firing special prosecutors), whereas others were largely insulatedfrom removal by certain statutory or regulatory features, e.g., 38 Fed. Reg. 30,739, amended by 38Fed. Reg. 32,805 (dramatically limiting President Nixon's power to remove Special ProsecutorJaworski, following Nixon's firing of former Special Prosecutor Archibald Cox).The second mistaken premise is that Special Counsel Smith is just another in a long line of"special attorneys” of similar ilk. In fact, very few historic special attorneys resemble SpecialCounsel Smith. For starters, the title "special counsel" is of fairly recent vintage. Special-attorney-like figures bore many titles throughout the decades. Special attorneys. Special assistants. Specialprosecutors. Independent counsels. And most recently, special counsels. In the Court's view, thisis not an insignificant semantic detail. See Kavanaugh, supra at 2136 n.5. As discussed below, itis emblematic of the variant backgrounds, roles, and authorities possessed by these historicalfigures.Moreover, the appointment of private citizens like Mr. Smith- -as opposed toalready-retained federal employees appears much closer to the exception than the rule. Thehistoric cases cited in Special Counsel Smith's Opposition demonstrate as much [ECF No. 374pp. 14–15]; compare United States v. Crosthwaite, 168 U.S. 375, 376 (1897) (appointing "specialassistant" from within DOJ to aid in prosecution), and United States v. Winston, 170 U.S. 522,524-25 (1898) (designating federal district attorney to serve as “special counsel" in anotherdistrict), and In re Persico, 522 F.2d at 45-46 (appointing internal DOJ attorney to act as "SpecialAttorney” on organized crime “strike force”), with United States v. Rosenthal, 121 F. 862(S.D.N.Y. 1903) (seeming to appoint private citizen as "special assistant to the Attorney General").3838

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 39 of 93And while the past half century has shown an uptick in private-citizen special counsels, thatpractice is far from uniform. Compare Order No. 3915-2017 (appointing private citizen RobertMueller as Special Counsel), with Letter from Acting Attorney General James B. Comey to PatrickJ. Fitzgerald (Dec. 30, 2003) (appointing U.S. Attorney Patrick Fitzgerald as Special Counsel),and Order No. 4878-2020 (appointing U.S. Attorney John Durham as Special Counsel), andOrder No. 5730-2023 (appointing U.S. Attorney David Weiss as Special Counsel).Nor is it true that special attorneys have operated with the same degree of power andautonomy as Special Counsel Smith. Consider again the historic cases cited in the Opposition[ECF No. 374 pp. 14–15]: those cases featured special attorneys with varying degrees of authority,most of whom were subject to greater oversight than Special Counsel Smith. See Crosthwaite,168 U.S. at 376 (describing “special assistant” whose authority was largely limited to aiding theU.S. Attorney, to whom he reported); In re Persico, 522 F.2d at 51-52 (describing special attorneyas existing in a "tight bureaucratic hierarchy controlled by the Attorney General” and “undervirtually constant specific direction and control”).2 Additionally, on several occasions,29 30Congress has helped define and indeed controlled the degree and scope of special counsels'29The special attorney in In re Persico operated under the supervision of at least three separatehigher-ranking members. 522 F.2d at 45. He functioned in an assisting capacity and lacked theindependent authority to take various actions without approval. See id. at 45-46. “The situationhere is quite unlike that we would face were the Attorney General to grant such a commission toa single person outside the bureaucratic structure who might take action and incur fiscal and otherliabilities for the government without limit.” Id. at 52.30 The "Special Assistant to the Attorney General” featured in Rosenthal bears closer resemblanceto Special Counsel Smith. He “appeared before [a] grand jury, and chiefly conducted theproceedings that resulted in the indictments” of several individuals involved in fraudulentimportations of Japanese silks. Rosenthal, 121 F. at 865. In that case, however, the courtdetermined that the special assistant was not an “officer” under the relevant statutes, nor did thosestatutes authorize him to appear before grand juries. Id. at 866-69. See also supra p. 35 n.25.3939

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 40 of 93authority. See Logan, supra pp. 30-31 (describing Congress's denial of President Truman'srequest that special prosecutor be given subpoena and immunity-granting power); id. p. 22(detailing Senate's role in “direct[ing] the President to appoint special counsel" to investigateTeapot Dome).And perhaps most importantly, Congress―historically, and in the present moment―hasshown that it knows how to create offices for special counsels. In 1924, Congress did so inresponse to the Teapot Dome scandal. Ch. 16, 43 Stat. 6 (“[T]he President is further authorizedand directed to appoint. . . special counsel who shall have charge and control of the prosecutionof such litigation."). In 1978, Congress passed the much-discussed (and now-defunct) IndependentCounsel Act. 28 U.S.C. §§ 591 et seq. In fact, there are statutes on the books right now that createoffices for "special counsels” with unique jurisdictions. 5 U.S.C. §§ 1211–19 (establishing an"Office of Special Counsel" to protect federal employees from “prohibited personnel practices");8 U.S.C. § 1324b(c)(1) (establishing a "Special Counsel for Immigration-Related UnfairEmployment Practices" to investigate and prosecute immigration-related employment offenses).³1All this stands to demonstrate that Congress knows how to legislate in this space. And when itdoes, it does so expressly and unequivocally.***In the end, there does appear to be a “tradition" of appointing special-attorney-like figuresin moments of political scandal throughout the country's history. But very few, if any, of these31 The Court expresses no opinion on whether these "special counsels” are truly constitutionalofficers. Notably, however, in both cases, Congress required these special counsels to benominated by the President and confirmed by the Senate. 5 U.S.C. § 1211(b) ("The SpecialCounsel shall be appointed by the President, by and with the advice and consent of the Senate, fora term of 5 years."); 8 U.S.C. § 1324b(c)(1) (“The President shall appoint, by and with the adviceand consent of the Senate, a Special Counsel for Immigration-Related Unfair EmploymentPractices... within the Department of Justice to serve for a term of four years.”).4040

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 41 of 93figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizenexercising the full power of a United States Attorney, and with very little oversight or supervision.When scrutinized, this spotty historical backdrop does not "amply confirm[] the AttorneyGeneral's authority to appoint the Special Counsel here" [ECF No. 374 p. 16]. Whatever marginalsupport the history may lend to Special Counsel Smith's position, the inconsistent patchwork ofpractices detailed above does not show that Congress ratified or acquiesced to the Executive'suse of Section 515 (or its predecessor statutes) to appoint special counsels like Mr. Smith. And itis far from sufficient to overcome the plain language of Section 515, which, as covered above,does not confer upon the Attorney General officer-appointing power but merely establishesprocedures (oath and commission) for already retained special attorneys who act in an assistantcapacity. Special Counsel Smith is not an assistant.D. 28 U.S.C. § 533The last statute cited in the Appointment Order and relied upon by the Special Counsel is28 U.S.C. § 533 [ECF No. 374 pp. 12–14; see ECF No. 429 pp. 22-23]. Section 533 is housedwithin a chapter (Chapter 33) devoted to the FBI. 28 U.S.C. §§ 531-540d. See infra pp. 50–52.It is titled "Investigative and other officials; appointment," and it permits the Attorney General toappoint four different types of "officials" as specified belowThe Attorney General may appoint officials-to detect and prosecute crimes against the United States;(1)(2)to assist in the protection of the person of the President; and(3)to assist in the protection of the person of the Attorney General.(4)to conduct such other investigations regarding official matters under thecontrol of the Department of Justice and the Department of State as may bedirected by the Attorney General.41

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 42 of 93This section does not limit the authority of departments and agencies to investigatecrimes against the United States when investigative jurisdiction has been assignedby law to such departments and agencies.28 U.S.C. § 533.332As a preliminary point, the Appointment Order issued in November 2022 is the firstappointment order or regulation that has cited Section 533 as a source of special-counsel-appointing authority. The Special Counsel Regulations promulgated in 1999, which replaced theIndependent Counsel regime of the Independent Counsel Act, did not cite Section 533 as a sourceof authority. 28 C.F.R. §§ 600.1 et seq. (citing 5 U.S.C. § 301; 28 U.S.C. §§ 509, 510, 515–519).Nor did the regulation appointing the Special Prosecutor in United States v. Nixon, 418 U.S. 683(1974). 38 Fed. Reg. 30738, as amended by 38 Fed. Reg. 32805 (citing 5 U.S.C. § 301; 28 U.S.C.§§ 509, 510). Nor did the Order appointing Special Counsel Robert Mueller, or any precedingspecial counsel appointing order. Order No. 3915-2017 (citing 28 U.S.C. §§ 509, 510, 515). Inthe Court's review, Section 533 was cited for the first time in 2022-in the Order appointingSpecial Counsel Smith—although it has twice been employed since then. 33Special Counsel Smith argues that Section 533(1) confers on the Attorney General theauthority to appoint special counsels, specifically, constitutional officers wielding the "full powerand independent authority . . . of any United States Attorney.” 28 C.F.R. § 600.6. After carefulreview, the Court is convinced that it does not. Congress “does not hide elephants inmouseholes." Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). Special Counsel32 The misplaced “and” following subsection (2)—which should properly follow subsection (3)—appears to stem from a 2002 amendment to Section 533. See Pub. L. 107-273, § 204(e), 116 Stat.1758, 1776 (2022). This apparent drafting error does not impact the Court's statutory analysis.33 Order No. 5730-2023 (appointing David C. Weiss); Order No. 5588-2023 (appointing RobertK. Hur).42

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 43 of 93Smith's interpretation would shoehorn appointment authority for United States Attorney-equivalents into a statute that permits the hiring of FBI law enforcement personnel. Such a readingis unsupported by Section 533's plain language and statutory context; inconsistent with Congress'susual legislative practice; and threatens to undermine the “basic separation-of-powers principles"that "give life and content” to the Appointments Clause. Morrison, 487 U.S. at 715 (Scalia, J.,dissenting). The Court explains below.i. The term "officials" is not synonymous with "officers."Section 533(1) authorizes the Attorney General to "appoint officials. . . to detect andprosecute crimes against the United States." 28 U.S.C. § 533(1). The parties dispute the properinterpretation of the term "officials." Defendants argue that “officials" is most naturally read as"nonofficer employees" [ECF No. 326 pp. 7–8; see ECF No. 364-1 pp. 16–18]. Special CounselSmith advances a broader interpretation, arguing that “official[s]' is a generic term that coversboth officers and employees" [ECF No. 374 p. 13]. The Court agrees with Defendants.Courts interpreting statutes “look to the plain and ordinary meaning of the statutorylanguage as it was understood at the time the law was enacted.” United States v. Chinchilla, 987F.3d 1303, 1308 (11th Cir. 2021). “One of the ways to figure out that meaning is by looking atdictionaries in existence around the time of enactment." Id. (citation omitted). Here, applicabledictionary definitions indicate that “officer” and “official," though overlapping in some areas, areDefinitions of "officer" emphasize the elevated degree of authority,responsibility, and duty that inheres in the position. Webster's Third New International Dictionary(1961) (defining “officer” as “one who holds an office: one who is appointed or elected to servein a position of trust, authority, or command esp. as spefic. provided for by law” and “distinguishednot synonymous.4343

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 44 of 93from employee and sometimes from official"). 34 These same characteristics are often absent fromdefinitions of “official," which tend to describe a more general class of bureaucratic personnel. Id.(defining “official” as “a person authorized to act for a government . . . esp. in administering ordirecting in a subordinate capacity," but also referring to "one who holds or is invested with anoffice"). 35 To be sure, some definitions overlap, and the words share linguistic echoes and roots.See Random House Dictionary of the English Language (1967) (defining “official” as “a personappointed or elected to an office or charged with certain duties, esp. in the government”). But theterms are not synonymous, nor can they be superficially substituted. See Concord Mgmt. &Consulting LLC, 317 F. Supp. 3d at 618-19. Definitions indicate that “officers" are distinguishedfrom "officials" by the “greater importance, dignity, and independence of [their] position[s]."Officer, Black's Law Dictionary (4th ed. 1951). Put succinctly: while all officers may be officials,not all officials are officers.It may be true that, in some circ*mstances, the broader term “officials" can operate as a"catch-all phrase that includes both officers and employees" [ECF No. 647 p. 53; see ECF No. 374p. 12]. "But a statute's meaning does not always 'turn solely' on the broadest imaginable‘definitions of its component words.' Linguistic and statutory context also matter.” Epic Sys.Corp. v. Lewis, 584 U.S. 497, 523 (2018) (quoting Yates v. United States, 574 U.S. 528, 53734Webster's Seventh New Collegiate Dictionary (1971) (defining “officer” as one holding an"office of trust, authority, or command," not simply that of an unspecified “office"); Black's LawDictionary (4th ed. 1951) (defining “officer” as “one who is lawfully invested with an office," and"one who is charged by a superior power (and particularly by government) with the power andduty of exercising certain functions"); id. (explaining that “officer' is distinguished from an‘employee' in the greater importance, dignity, and independence of his position, in requirement ofoath, bond, more enduring tenure, and fact of duties being prescribed by law").35 Webster's Seventh New Collegiate Dictionary (1971) (defining “official” as one “invested withan office," but "esp. a subordinate one"); Black's Law Dictionary (4th ed. 1951) (defining"official" as "[a]n officer; a person invested with the authority of an office").44

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 45 of 93(2015)); see Harrington v. Purdue Pharma L. P., 144 S. Ct. 2071, 2082 (2024) ("When faced witha catchall phrase. . . courts do not necessarily afford it the broadest possible construction it canbear."). As discussed below, when read in context, “officials” is narrowed by what it describes.When read in its specific statutory context, Section 533(1) cannot bearthe expansive meaning advanced by Special Counsel Smith.ii."When words have several plausible definitions, context differentiates among them."United States v. Hansen, 599 U.S. 762, 775 (2023). “[T]he meaning of a word cannot bedetermined in isolation, but must be drawn from the context in which it is used." Deal, 508 U.S.at 132. Under the noscitur a sociis canon, “a word is known by the company it keeps." Jarecki v.G. D. Searle & Co., 367 U.S. 303, 307 (1961). This canon “is often wisely applied where a wordis capable of many meanings in order to avoid giving unintended breadth to the Acts of Congress."Id.Like all statutory terms, “officials” as used in Section 533(1) "does not stand alone butgathers meaning from the words around it.” Id. When “officials” is read in relation to thesubsections it describes, it is evident that Section 533(1) does not afford the Attorney Generalbroad power to appoint special counsels. Consider its fellow subsections. Subsections (2) through(4) describe security and investigative employees within the FBI-bureaucratic personnel makingup the "broad swath of 'lesser functionaries' in the Government's workforce." Lucia, 585 U.S. at245 (defining “employees"); see 28 U.S.C. § 533(2)-(4). While undoubtedly important, theseindividuals cannot fairly be characterized as constitutional officers who, by definition, exercise"significant authority pursuant to the laws of the United States.” Buckley, 424 U.S. at 126; seeEdmond, 520 U.S. at 662 (describing authority as "the line between officer and nonofficer”). It isimplausible, then, that Congress intended to wedge appointment power for special counsels45

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 46 of 93possessing the "full power . . . of any United States Attorney" into a statute concerning low- andmid-level law enforcement personnel in a statutory section governing the FBI. 28 C.F.R. § 600.6.36Section 533(1)'s use of the phrase “detect and prosecute crimes” does not otherwisetransform the provision into a grant of special-counsel-appointing authority. 28 U.S.C. § 533(1)(emphasis added). In the context of this FBI provision, and drawing from applicable dictionarydefinitions, the meaning of "prosecute" naturally encompasses FBI employees who are engagedor involved in federal investigations and prosecutions. See, e.g., Prosecute, Black's LawDictionary (3d ed. 1933) (“To follow up; to carry on an action or other judicial proceeding; toproceed against a person criminally."). 37 This could include FBI attorneys and other legal staff,but it also naturally encompasses non-lawyer FBI personnel involved in prosecutorial efforts topursue and/or investigate a crime or claim, such as FBI agents, intelligence officials, and forensicspecialists. At any rate, as Section 533(1)'s subsections clarify, it authorizes only the hiring of36 This reading comports with how “officials” is used elsewhere in Chapter 33. Section 534 usesthe term to describe positions that are far more consistent with an "employee" designation than an"officer" designation. See 28 U.S.C. § 534 (describing “officials" that the Attorney General "mayappoint. . . to perform the functions authorized by this section"). Moreover, Congress's uses theexpress phrase "officers and employees” (not the umbrella term “officials") elsewhere in the samechapter. 28 U.S.C. § 535(a) ("The Attorney General and the [FBI] may investigate any violationof Federal criminal law involving Government officers and employees ...."); see also 28 U.S.C.§§ 509, 510 (differentiating between "officers" and "employees"). Reading “officials" to mean"officers and employees” would conflict with the meaningful variation canon. See In re Failla,838 F.3d 1170, 1176 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law:The Interpretation of Legal Texts 170 (2012)).37 Webster's Third New International Dictionary (1961) (providing various formulations,including "to follow, follow after, pursue”; “to follow to the end: press to execution or completion:pursue until finished"; "to develop in detail: go further into: INVESTIGATE”; “to engage in orproceed with: carry on: PERFORM"; "to institute legal proceedings against, esp.: to accuse ofsome crime or breach of law or to pursue for redress or punishment of a crime or violation of lawin due legal form before a legal tribunal”; “to institute legal proceedings with reference" to a“claim,” an “action,” or a “prosecution” for “public offenses”).46

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 47 of 93prosecutorial employees-not constitutional officers like Special Counsel Smith. See 28U.S.C. §§ 533(2)–(4).Nor is the Court persuaded by the Special Counsel's suggestion that reading “officials" as"non-officer employees" would render superfluous the term “employees" as used in Section 533(1)[ECF No. 647 p. 53]. This posits an artificial binary. It fails to consider the gradient of authoritythat exists between the lowest-level employees and constitutional “Officers” wielding “significantauthority pursuant to the laws of the United States." Buckley, 424 U.S. at 126. Take the FBI asan example. An FBI agent is an “employee.” The agent's supervisor—who possesses moreresponsibility and influence than the agent―may rightly be deemed an “official." And the FBIDirector at the top of the organizational chart is a constitutional "Officer” appointed by thePresident and confirmed by the Senate. And among this sliding-scale of authority, context showsthat "official" as used in Section 533(1) cannot be fairly read to mean constitutional officer.iii.Congress tracks the language of the Appointments Clause when vestingofficer-appointing power in department heads.Reading “officials" as "officers and employees” would also be contrary to Congress'stypical legislative practice. As indicated above, when Congress "by Law vest[s] the Appointmentof such inferior Officers . . . in the Heads of Departments," it does so in a particular way. Art. II,§ 2, cl. 2. A survey of generalized vesting statutes throughout the United States Code shows thatCongress routinely uses the term "officers," or the phrase "officers and employees" when vestingofficer-appointing power in department heads. 38 Consider the following examples, some of whichwere covered above:38 The Court refers to “generalized” vesting statutes as those which concern the appointment of alargely undefined group of individuals. See 49 U.S.C. § 323(a) (“The Secretary of Transportationmay appoint and fix the pay of officers and employees of the Department of Transportation andmay prescribe their duties and powers."). These are distinct from position-specific statutes. See47

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 48 of 93"The Secretary of Agriculture may appoint such officers and employees, subject to theprovisions of chapter 51 and subchapter III of chapter 53 of Title 5, and such experts, asare necessary to execute the functions vested in him by this chapter.” 7 U.S.C. § 610(a)(emphasis added)."The Secretary [of Education] is authorized to appoint and fix the compensation of suchofficers and employees, including attorneys, as may be necessary to carry out the functionsof the Secretary and the Department.” 20 U.S.C. § 3461(a) (emphasis added)."The [HHS] Secretary is authorized to appoint and fix the compensation of such officersand employees, and to make such expenditures as may be necessary for carrying out thefunctions of the Secretary under this chapter.” 42 U.S.C.A. § 913 (emphasis added)."The Secretary of Transportation may appoint and fix the pay of officers and employeesof the Department of Transportation and may prescribe their duties and powers." 49 U.S.C.§ 323(a) (emphasis added).Congress employed this same formulation when vesting officer-appointing power in the AttorneyGeneral for the Bureau of Prisons: "The Attorney General may appoint such additional officersand employees as he deems necessary.” 18 U.S.C. § 4041.To be sure, there may be instances in which Congress uses “officials" to confer officer-appointing power [ECF No. 640 p. 3 (supplemental authority)], but in those instances, Congressstill tracks the constitutional language of the Appointments Clause in a way that reflects officerstatus—that is, by appending some variation of “appointed by the President, by and with the adviceand consent of the Senate” to make explicit that “officials” means "officers."³9 10 U.S.C.§ 137a(a) (authorizing the hiring of six “officials" who "shall be appointed from civilian life bythe President, by and with the advice and consent of the Senate"); 22 U.S.C. § 285a(a)(1)(B)(describing "officials required by law to be appointed by and with the advice and consent of theSenate"); 22 U.S.C. § 290g-1(a)(2) (same); 22 U.S.C. § 2651a(d) (authorizing appointment of28 U.S.C. § 542(a) ("The Attorney General may appoint one or more assistant United Statesattorneys in any district when the public interest so requires.").39 The term "officials" appears nowhere in the Appointments Clause or in the Constitution.48

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 49 of 93officials "who are otherwise authorized to be appointed by the President, by and with the adviceand consent of the Senate"); 28 U.S.C. § 561(c) (describing U.S. marshals as “officials" appointedby the President "by and with the advice and consent of the Senate"); 50 U.S.C. § 3369d(c)(1)(A)(authorizing appointment of "officials of such agency or department who occupy a position that isrequired to be appointed by the President, with the advice and consent of the Senate”). 40 41Congress regularly intends certain words and phrases “to be read as terms of art connectingthe congressional exercise of legislative authority with the constitutional provision . . . that grantsCongress that authority." Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 17-18 (2006)(collecting cases); see Hansen, 599 U.S. at 775 (“Here, the context of these words—the water inwhich they swim-indicates that Congress used them as terms of art."); F.A.A. v. Cooper, 566U.S. 284, 292-93 (2012). That seems to be the case in the appointments context, where Congressadheres closely to the constitutional text, and it would be consistent with the Supreme Court's40 The remaining statutes cited in the Special Counsel's notice of supplemental authority areinapplicable for one of two reasons. First are those which do not confer officer-appointing powerat all. 10 U.S.C. § 397 (providing that the Secretary "shall designate” an official to serve asprincipal advisor from “among officials appointed . . . by and with the advice and consent of theSenate")), 10 U.S.C. § 988(c) (definitions section imbedded in statute that does not conferappointing power), 16 U.S.C. § 831e (mandating that appointments of “employees or officials”—which are provided for elsewhere in Chapter 12A (Tennessee Valley Authority)-be nonpolitical).Second are those in which, as best the Court can tell, the term “official” describes a position thatlacks the “significant authority” commensurate with a constitutional officer, Buckley, 424 U.S. at126, such that the Appointments Clause is not implicated. 6 U.S.C. § 142(a) (providing forappointment of "senior official" to "assume primary responsibility for privacy policy” at DHS,and requiring said official to obtain approval from Secretary for subpoenas); 50 U.S.C. § 4306(authorizing "[t]he President to appoint... an official to be known as the alien propertycustodian"). To the extent the "officials" in the second category of examples are deemed somehowto veer into “officer” territory—a proposition untested in caselaw—those statutes would be clearoutliers against the weight of contrary statutory language described above.41The Constitutional Lawyers' amicus brief includes a lengthy string citation to provisions inwhich “official” subsumes “officer" [ECF No. 429 p. 22 n.4]. These provisions, mostlydefinitional, do not confer officer-appointing power.49

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 50 of 93demonstrated preference in this realm. See Edmond, 520 U.S. at 657–58; Weiss, 510 U.S. at 171–72; Germaine, 99 U.S. at 510.42In sum, this consistent legislative practice shows that Section 533(1)'s unspecified use of"officials" as opposed to “officers,” or “officers and employees”—“is not merely stylistic."Edmond, 520 U.S. at 657. Rather, it is telling of Congress' intent. As the collection of statutesabove shows, "had Congress meant to confer 'officer'-appointing power via § 533 or any otherprovision, ‘it easily could have done so." Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at619 (quoting Baker Botts LLP v. ASARCO LLC, 576 U.S. 121, 129 (2015)).iv.Section 533's placement in the statutory scheme compels a morecirc*mscribed reading.As noted above, Section 533 is housed in a chapter concerning the “Federal Bureau ofInvestigation.” 28 U.S.C. §§ 531-540d.43 It is sandwiched between 28 U.S.C. § 532, a statute42 The Special Counsel invokes Edmond to argue that the Supreme Court found officer-appointingauthority in a "default statute" with language more general than that of Section 533 [ECF No. 374p. 12]. Edmond did find statutory appointment authority for Coast Guard judges in 49 U.S.C.§ 323(a). 520 U.S. at 656. But merely comparing the statutes' generality ignores a critical,distinguishing feature: unlike Section 533, the statute in Edmond expressly uses the word "officer."49 U.S.C. § 323(a) (authorizing appointment of "officers and employees of the Department ofTransportation"). Edmond held that a vesting statute need “not specifically mention" a particularofficer, so long as the statute's "plain language . . . appears to give the Secretary power to appointthem." Edmond, 520 U.S. at 656. The text of 49 U.S.C. § 323(a) passed that test. Section 533does not.43 Special Counsel Smith insists that consideration of Chapter 33's title, "Federal Bureau ofInvestigation," cannot be considered unless the Court finds that Section 533 is ambiguous[ECF No. 374 p. 13]. It is true that “the title of a statute cannot limit the plain meaning of the text"and should be used "[f]or interpretive purposes... only when it sheds light on some ambiguousword or phrase." Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (internalbrackets and quotations omitted). Still, however, there can be no dispute that evaluation of astatute's placement in its statutory scheme is a permissible tool of statutory construction. In anyevent, with respect to consideration of Section 533's "title," the Court sees no legal barrier toconsulting the title here given the parties' arguments—although such consideration merelyconfirms the conclusion that the use of the word "officials" in Section 533(1) does not conferofficer-appointing power in the manner claimed by the Special Counsel.50

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 51 of 93about the appointment of the FBI Director, and 28 U.S.C. § 534, which concerns the acquisition,preservation, and exchange of evidence in criminal cases. Given Section 533's location, it isexceedingly unlikely that Congress intended to tuck special-counsel-appointing power into achapter devoted to the FBI.44 Several of the surrounding chapters are clearly more natural homesfor such a statute. See 28 U.S.C. §§ 501-530D (Attorney General); 28 U.S.C. §§ 561-575 (U.S.Attorneys). And as mentioned at length above, until 1999, there was an entire chapter in the DOJSection of Title 28 devoted to such independent counsel figures. 28 U.S.C. §§ 591-599(Independent Counsel Act).Section 533's heading, “Investigative and other officials; appointment," provides anadditional indicator that the provision is cabined to low- or mid-level FBI personnel. While"headings are not commanding, they supply clues" of congressional intent. Yates, 574 U.S. at 540.Unlike prior statutes concerning independent counsels, Section 533's heading lacks any indicationthat it concerns a "Special Counsel," or deals with prosecutorial power at all. Compare 28 U.S.C.§ 533 with 28 U.S.C. § 592 ("Preliminary investigation and application for appointment of anindependent counsel"), and 28 U.S.C. § 594 ("Authority and duties of an independent counsel"),and 28 U.S.C. § 594 (United States attorneys); cf. Pub. L. No. 95–521, § 601, ch. 39 (SpecialProsecutor), 92 Stat. 1824 (Oct. 26, 1978). It would be odd indeed if lawmakers—in establishingan office with the prosecutorial might of a United States Attorney-made no such mention in the44 In response, Special Counsel Smith cites two out-of-circuit cases in which courts-both infootnotes extended Section 533 beyond the FBI context [ECF No. 374 p. 14 (citing United Statesv. Hasan, 846 F. Supp. 2d 541, 546 n.7 (E.D. Va. 2012) and United States v. Fortuna, No. 12-cr-636 2013 WL 1737215, at *2 n.8 (D.N.J. Apr. 22, 2013))]. These cases did not involveAppointments Clause challenges. They did not engage with the text of 28 U.S.C. § 533 or itslocation in the United States Code. And they did not authorize appointment of constitutional"officers" with the power of the Special Counsel; rather, they approved appointment of ATFofficials (i.e., agents). Accordingly, the Court does not find them persuasive in this context.51

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 52 of 93statute's heading. If Congress had intended to create such a powerful and significant office inSection 533, it would not have obscurely buried the lede and omitted any such reference from thestatute's heading, or more importantly, from the text of the provision itself.***For the reasons stated above, as a matter of plain text, statutory context, and legislativepractice, Section 533-cited in an appointment order for the first time in November 2022 aspurported authority—does not provide a basis in “Law” for the appointment of Special CounselSmith. Art. II, § 2, cl. 2.E. Special Counsel Smith's interpretation undermines the separation-of-powersprinciples that animate the Appointments Clause and destabilizes Congress'scarefully crafted statutory structure for the DOJ.On a more fundamental level, adopting the Special Counsel's untenable interpretation ofSections 515(b) and 533 erodes the "basic separation-of-powers principles" that "give life andcontent" to the Appointments Clause by wresting from Congress its constitutionally prescribedrole in the officer-appointing process. Morrison, 487 U.S. at 715 (Scalia, J., dissenting). It alsodestabilizes Congress's carefully crafted statutory structure for DOJ.As the discussion in this Order demonstrates, Congress has carefully enacted a statutoryscheme, consistent with the Appointments Clause, governing the appointment of high-level federalprosecutors. See Calabresi & Lawson, supra pp. 113-115. Most relevant here, United StatesAttorneys, the officers most closely resembling Special Counsel Smith, see 28 C.F.R. § 600.6,must be nominated by the President and confirmed by the Senate. 28 U.S.C. § 541. Adopting theposition of the Special Counsel allows any Attorney General, without Congressional input, tocircumvent this statutory scheme and appoint one-off special counsels to wield the immense powerof a United States Attorney. This strips from Congress its role in the appointments process, and it5252

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 53 of 93does so, moreover, in a highly sensitive area involving “life, liberty, and reputation.” Robert H.Jackson, U.S. Att'y Gen., Address at the Second Annual Conference of United States Attorneys:The Federal Prosecutor 1 (Apr. 1, 1940) (describing immense power of federal prosecutors overcitizenry).Absent a statute vesting appointing power elsewhere, the "default manner of appointmentfor inferior officers" is Presidential nomination and Senate confirmation. Edmond, 520 U.S. at660. And while Congress may "vest the Appointment of such inferior Officers, as they see proper,in... Heads of Departments," Art. II, § 2, cl. 2, it did not do so in the cited statutes. Such a broadreading results in precisely the type of diffusion and encroachment that concerned the Framers indrafting the Appointments Clause. Freytag, 501 U.S. at 883–86; Weiss, 510 U.S. at 187-89(Souter, J., concurring) ("If the structural benefits the Appointments Clause was designed toprovide are to be preserved . . . no branch may aggrandize its own appointment power at theexpense of another."). The Court thus declines to dilute the appointment power by reading Sections515(b) and 533(1) as ceding a core legislative function to another branch. See Freytag, 501 U.S.at 885 ("The Framers recognized the dangers posed by an excessively diffuse appointment powerand rejected efforts to expand that power. So do we.") (internal citation omitted); id. at 884–86.IV.United States v. NixonThe parties disagree about the precedential value of a passage from United States v. Nixon,418 U.S. 683 (1974) [ECF No. 326 pp. 8–9; ECF No. 374 pp. 8–10; ECF No. 414 pp. 3-4;ECF No. 364-1 pp. 22-23]. That passage is reproduced below. The Court emphasizes thestatement that serves as the focal point of the parties' dispute.Under the authority of Art. II, § 2, Congress has vested in the Attorney General thepower to conduct the criminal litigation of the United States Government. 28 U.S.C.§ 516. It has also vested in him the power to appoint subordinate officers to assisthim in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant5353

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 54 of 93to those statutes, the Attorney General has delegated the authority to represent theUnited States in these particular matters to a Special Prosecutor with uniqueauthority and tenure. The regulation gives the Special Prosecutor explicit power tocontest the invocation of executive privilege in the process of seeking evidencedeemed relevant to the performance of these specially delegated duties.Id. at 694-95 (emphasis added and footnote omitted).45 Defendants argue that Nixon's statementabout the Attorney General's statutory authority is non-binding dictum and thus should not controlthe Court's statutory analysis (as done above) [ECF No. 326 pp. 8–9; ECF No. 414 pp. 3-4]. TheSpecial Counsel argues that this statement “formed a necessary element of [Nixon's] holding," andtherefore constitutes binding precedent [ECF No. 374 p. 9].Following a comprehensive review of the Supreme Court record, 46 the Court concludesthat the disputed statement from Nixon is dictum. The issue of the Attorney General's appointmentauthority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedlyprecedential in several areas—for example, in its pronouncements on the justiciability of an intra-branch controversy; the test for issuing Rule 17(c) subpoenas; and application of executiveprivilege in the face of a valid subpoena. Those issues were presented, argued, and carefullyconsidered. The same is not true of the Attorney General's statutory appointment authority. Atmost, Nixon assumed that antecedent proposition, without deciding it. United States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990). Thus, Nixon's passing remarks on that point are not binding45 For the sake of completeness, the omitted footnote provides, in relevant part, that “[t]heregulation issued by the Attorney General pursuant to his statutory authority, vests in the SpecialProsecutor plenary authority to control the course of investigations and litigation related to"Watergate. Id. at 694 n.8.46 The Court collected and reviewed all available filings in United States v. Nixon, 418 U.S. 683(1974) (No. 73-1766), and Nixon v. United States, 418 U.S. 683 (1974) (No. 73-1834). Thisincludes the applicable cert petitions and merits briefing, along with amicus briefs, the fullappendix, and the consolidated oral argument transcript. Oral Argument, United States v. Nixon,418 U.S. 683 (1974) (Nos. 73-1766, 73-1834).54

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 55 of 93precedent in "future cases," as here, “that directly raise the question[]." Id. Giving these remarksprecedential weight runs the risk that “stray language” from the Nixon opinion "will take onimportance in a new context that its drafters could not have anticipated." Rudolph v. United States,92 F.4th 1038, 1045 (11th Cir. 2024).This section proceeds in four parts. The Court (1) reviews the terms “holding” and “dicta";(2) provides context to situate the controversy in Nixon; (3) analyzes the disputed passage fromNixon; and (4) discusses the proper weight that nevertheless should be accorded to the Nixondictum. This section is lengthy because the Nixon dictum has taken on significance in relatedcases, and a full explication of the record is necessary. See In re Sealed Case, 829 F.2d 50 (D.C.Cir. 1987); In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019).A. Legal Standards"Not all text within a judicial decision serves as precedent.” Bryan A. Garner et al., TheLaw of Judicial Precedent § 4, at 44 (2016). Thus, distinguishing between precedential “holdings”and non-binding "dicta" is crucially important. See Fresh Results, LLC v. ASF Holland, B.V., 921F.3d 1043, 1049 (11th Cir. 2019). A holding "comprises both the result of the case and thoseportions of the opinion necessary to that result.” United States v. Caraballo-Martinez, 866 F.3d1233, 1244 (11th Cir. 2019) (internal quotation marks and citations omitted); see Black's LawDictionary (11th ed. 2019) (defining “holding” as “[a] court's determination of a matter of lawpivotal to its decision; a principle drawn from such a decision."). Dictum, on the other hand, is "astatement that neither constitutes the holding of a case, nor arises from a part of the opinion that isnecessary to the holding of the case." United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)(quotation marks omitted). While courts must dutifully follow precedential holdings, “dicta is not55

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 56 of 93binding on anyone for any purpose," Edwards, 602 F.3d at 1298, although Supreme Court dictadoes merit consideration as discussed below.Statements in an opinion that extend beyond the scope of the issues presented, briefed, andargued generally constitute dicta. "Questions which merely lurk in the record, neither brought tothe attention of the court nor ruled upon, are not to be considered as having been so decided as toconstitute precedents.” United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022) (quotingWebster v. Fall, 266 U.S. 507, 511 (1925)); United States v. L. A. Tucker Truck Lines, Inc., 344U.S. 33, 38 (1952) (“The effect of the omission was not there raised in briefs or argument nordiscussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point.”).The same is generally true of assumptions that are peripheral to the issues presented. "TheCourt often grants certiorari to decide particular legal issues while assuming without deciding thevalidity of antecedent propositions, and such assumptions-even on jurisdictional issues- -are notbinding in future cases that directly raise the questions." Verdugo-Urquidez, 494 U.S. at 272(internal citations omitted); Garner et al., supra at 84 ("Judicial opinions are always premised ona series of assumptions about what the law is. Yet those assumptions—whether implicit orexplicit aren't generally considered precedential."). As explained by Chief Justice JohnMarshall:It is a maxim not to be disregarded, that general expressions, in every opinion, areto be taken in connection with the case in which those expressions are used. If theygo beyond the case, they may be respected, but ought not to control the judgmentin a subsequent suit when the very point is presented for decision. The reason ofthis maxim is obvious. The question actually before the Court is investigated withcare, and considered in its full extent. Other principles which may serve to illustrateit, are considered in their relation to the case decided, but their possible bearing onall other cases is seldom completely investigated.Cohens v. State of Virginia, 19 U.S. 264, 399–400 (1821).56

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 57 of 93Lastly, "not all dicta are created equal." Farah v. U.S. Att'y Gen., 12 F.4th 1312, 1323(11th Cir. 2021) (Pryor, C.J.) (quoting Garner et al., supra at 69). Dicta from the Supreme Courtare entitled to considerable—and in some cases, even precedential—weight. Schwab v. Crosby,451 F.3d 1308, 1325-26 (11th Cir. 2006) (collecting cases); Peterson v. BMI Refractories, 124F.3d 1386, 1392 n.4 (11th Cir. 1997) (emphasizing that “dicta from the Supreme Court is notsomething to be lightly cast aside"). Inferior courts must accord Supreme Court dicta appropriaterespect and deference. United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980).B. Decisional ContextTo discern whether the disputed passage from Nixon constitutes part of its holding, it helpsto situate it in context, including by ascertaining the precise action taken by the trial court.Rudolph, 92 F.4th at 1045 (advising lower courts to "consider opinions in their context, includingthe questions presented and the facts of the case" in evaluating the precedential value of statementstherein); see Nat'l Pork Producers Council v. Ross, 598 U.S. 356, 373–74 (2023) (emphasizingthat Supreme Court opinions “dispose of discrete cases and controversies and they must be readwith a careful eye to context"); Garner et al., supra at 52.Nixon involved Special Prosecutor Leon Jaworski's investigation and prosecution of thoseinvolved in the Watergate scandal. The Special Prosecutor issued a subpoena to President Nixon-an unindicted co-conspirator-requiring the production of certain tapes and documents relevant tothe investigation. Nixon, 418 U.S. at 686. Counsel for President Nixon moved to quash thesubpoena, raising three principal arguments. United States v. Mitchell, 377 F. Supp. 1326, 1328–29 (D.C.C. 1974).First, President Nixon argued that "courts are without authority to rule on the scope orapplicability of executive privilege." Id. at 1329. The district court found this jurisdictional57

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 58 of 93argument to be foreclosed by circuit precedent. Id. (citing Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.1973)). Second-and most important to Defendants' Motion at issue here-President Nixonargued that the intra-branch dispute presented a nonjusticiable political question. Id. Referencingthe appointing regulation, which carried “the force of law,” the district court found that the SpecialProsecutor possessed sufficient independence to create a justiciable controversy. Id. at 1329 & n.7(citing 38 Fed. Reg. 30,738). Third, President Nixon argued on the merits that the requirementsfor issuance of a Rule 17(c) subpoena had not been satisfied, also asserting a confidentialityprivilege. Id. at 1329. The district court disagreed. Id. at 1330–31. Notably, none of thesearguments (or the district court's resolution thereof) had anything to do with the AttorneyGeneral's statutory appointment authority or the Appointments Clause more generally.At the Supreme Court, President Nixon re-raised the same challenges. 47 Nixon, 418 U.S.at 686. On the justiciability question, President Nixon again asserted that the intra-branch natureof the dispute presented a nonjusticiable political question outside the purview of the judiciary. Id.at 691-92.48 The Supreme Court ultimately rejected this argument. Id. at 697. Before doing so,however, the court offered a prefatory paragraph to contextualize “the nature of the proceeding forwhich the evidence is sought." Id. at 694. The relevant portion of that paragraph-which wasalso reproduced above, supra pp. 53-54 provides:47 There was no intermediate appellate review in Nixon; the Supreme Court granted certioraribefore judgment. Nixon, 418 U.S. at 686–87.48 See Brief for the Respondent, Cross-Petitioner at 27-48; id. at 16-17 (“Under the standards setforth in Baker v. Carr, 369 U.S. 186 (1962), this intra-branch dispute raises a political questionwhich the federal courts lack jurisdiction to decide. The district court does not have the power tosubstitute its judgement for that of the President on matters exclusively within the President'sdiscretion."); id. at 29–30 (challenging the “authority of the court or any branch of the governmentto intervene in a solely intra-branch dispute”); id. at 41 (same); Reply Brief for the Respondent,Cross-Petitioner at 4-13.58

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 59 of 93Under the authority of Art. II, § 2, Congress has vested in the Attorney General thepower to conduct the criminal litigation of the United States Government. 28 U.S.C.§ 516. It has also vested in him the power to appoint subordinate officers to assisthim in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuantto those statutes, the Attorney General has delegated the authority to represent theUnited States in these particular matters to a Special Prosecutor with uniqueauthority and tenure. The regulation gives the Special Prosecutor explicit power tocontest the invocation of executive privilege in the process of seeking evidencedeemed relevant to the performance of these specially delegated duties.Id. at 694-95 (footnote omitted).Following this stage-setting paragraph, the Supreme Court determined that the extantregulation's delegation of authority—both in the independence it created in Special ProsecutorJaworksi and in the limitations it placed on his removal-established a justiciable case orcontroversy. Id. at 694–98; see id. at 696 (explaining that “[s]o long as this regulation remains inforce the Executive Branch is bound by it”). "In light of the uniqueness of the setting in which theconflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed asa barrier to justiciability.” Id. at 697.C. AnalysisWith this context in mind, the Court proceeds to analyze the disputed statement fromNixon, ultimately concluding that it is dictum.i.The Attorney General's appointment authority was not an issue beforethe Supreme Court in Nixon.In Nixon, the Supreme Court granted certiorari to decide six questions: five from theSpecial Prosecutor's petition, and one from President Nixon's cross-petition. 49 See Petition and49 The Nixon Court also ordered the parties to file supplemental briefs on the following twoquestions: (1) "Is the District Court order of May 20, 1974, an appealable order?” and (2) "Doesthis Court have jurisdiction to entertain and decide the petition for mandamus transmitted by theCourt of Appeals to this Court?” Docket Sheets (Nos. 73-1766, 73-1834), Neither of thosequestions nor the briefing submitted in response-concerned the validity of the Special59

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 60 of 93Cross-Petition for Writ of Certiorari Before Judgment, United States v. Nixon, 418 U.S. 683 (1974)(Nos. 73-1766, 73-1834). Those questions are copied verbatim below:Special Prosecutor's Petition1. Whether the President, when he has assumed sole personal and physical control overevidence demonstrably material to the trial of charges of obstruction of justice in a federalcourt, is subject to a judicial order directing compliance with a subpoena duces tecumissued on the application of the Special Prosecutor in the name of the United States.2. Whether a federal court is bound by the assertion by the President of an absolute "executiveprivilege" to withhold demonstrably material evidence from the trial of charges ofobstruction of justice by his own White House aides and party leaders, upon the groundthat he deems production to be against the public interest.3. Whether a claim of executive privilege based on the generalized interest in theconfidentiality of government deliberations can block the prosecution's access to evidencematerial and important to the trial of charges of criminal misconduct by high governmentofficials who participated in those deliberations, particularly where there is a prima facieshowing that the deliberation occurred in the course of the criminal conspiracy.4. Whether any executive privilege that otherwise might have been applicable to discussionsin the offices of the President concerning the Watergate matter has been waived by previoustestimony pursuant to the President's approval and by the President's public release of1,216 pages of edited transcript of forty-three Presidential conversations related toWatergate.5. Whether the district court properly determined that a subpoena duces tecum issued to thePresident satisfies the standards of Rule 17(c) of the Federal Rules of Criminal Procedurebecause an adequate showing has been made that the subpoenaed items are relevant toissues to be tried and will be admissible in evidence.President Nixon's Cross-Petition1. Whether, under the Constitution, a grand jury has the authority to charge an incumbentPresident as an unindicted co-conspirator in a criminal proceeding.As the Nixon opinion reflects, the questions presented—that is, “[t]he questions actuallybefore the Court”—were “investigated with care, and considered in their fullest extent." Cohens,Prosecutor. See Supplement Brief for the Petitioner, No. 73-1766; Brief for Respondent, Cross-Petitioner, No. 73-1766.6060

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 61 of 9319 U.S. at 399. The same is not true of the Attorney General's statutory appointment authority, aperipheral subject that was not raised in the case. To reiterate, “[t]he Court often grants certiorarito decide particular legal issues while assuming without deciding the validity of antecedentpropositions, and such assumptions—even on jurisdictional issues- -are not binding in future casesthat directly raise the questions." Verdugo-Urquidez, 494 U.S. at 272; see Becton, 632 F.2d at1296 n.3; Caraballo-Martinez, 866 F.3d at 1245; see also United States v. Manafort, 321F. Supp. 3d 640 (E.D. Va. 2018).50 Because the statutory-authority question was not before theSupreme Court, the opinion's single prefatory sentence does not amount to a precedential holding.The Special Prosecutor's validity was uncontested.ii.A case is not "binding precedent' on points that were not there raised in briefs or argumentnor discussed in the opinion." Bourdon v. United States Dep't of Homeland Sec., 940 F.3d 537,548-49 (11th Cir. 2019) (internal quotation marks omitted); Garner et al., supra at 84–85. Therationale behind such a rule is sensible. Where "the issue addressed in the passage was notpresented as an issue, [and] hence was not refined by the fires of adversary presentation,” it is farless likely to constitute a carefully reasoned, essential part of the court's opinion. United States v.Crawley, 837 F.2d 291, 293 (7th Cir. 1988) (Posner, J.) (defining “dictum").Across hundreds of pages of briefing (and hours of oral argument) in Nixon, neither partychallenged the Special Prosecutor's validity or the Attorney General's appointment authority. Infact, on numerous occasions, President Nixon expressly stated that he did not contest these points.Brief for the Respondent at 42 (stating, in reference to the regulation, that “the President has not50In United States v. Manafort, 321 F. Supp. 3d 640 (E.D. Va. 2018), the court determined thatNixon's line "[s]o long as this regulation is extant it has the force of law," was dictum. Id. at 659(quoting Nixon, 418 U.S. at 695); see also id. ("Nixon is inapposite inasmuch as the holding theredid not adjudicate the legal authority of a special prosecutor.").61

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 62 of 93in the past nor does he here challenge those powers that were given to the Special Prosecutor inWatergate-related matters"); Reply Brief for the Respondent at 8 (emphasizing that "[w]e do notcontest the Special Prosecutor's assertion that his authority is derived from the Attorney General");see Tr. of Oral Argument, Nos. 73-1766, 73-1834. The Special Counsel acknowledges as much[ECF No. 374 p. 9 (accepting that “President Nixon did not contest that statutory analysis")]. Thisabsence of argument on the appointment-authority point further cements the disputed passage'sstatus as dictum. The parties themselves litigated the entire case without touching the issue.The Court's statement on the Attorney General's statutory authoritywas not "necessary" to its resolution of the justiciability issue.iii.Even though the statutory-authorization question was not at issue, and despite its absencefrom the record, Special Counsel Smith still contends that Nixon's comment on this point "formeda necessary element of its holding” [ECF No. 374 p. 9]. He argues that "finding statutory authorityfor the appointment was thus central to the Court's conclusion that '[s]o long as this regulation[setting forth the Special Prosecutor's authority] is extant it has the force of law"" [ECF No. 374p. 9 (quoting Nixon, 418 U.S. at 695) (alterations in Opposition)]. This "read[s] too much intotoo little." Nat'l Pork Producers Council, 598 U.S. at 373 (stressing that opinions must "be readwith a careful eye to context").The disputed passage is located within a prefatory, stage-setting paragraph which merelyserved to tee up the case-or-controversy analysis that followed. As recap, President Nixon arguedthat the case presented a nonjusticiable political question by virtue of the intra-branch nature ofthe dispute. See supra p. 58 n.48. The Nixon Court disagreed. “[J]usticiability does not dependon such a surface inquiry.” 418 U.S. at 693. Instead, Nixon stated that “courts must look behindnames that symbolize the parties to determine whether a justiciable case or controversy ispresented." Id. (citation omitted). In doing so, Nixon zoomed out and provided a high-level6262

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 63 of 93background paragraph explaining how the case landed at the Supreme Court. Id. at 694 (“Ourstarting point is the nature of the proceeding for which the evidence is sought-here a pendingcriminal prosecution.”). It is within this overview paragraph that the disputed dictum is located.Properly situated in this context, therefore, Nixon's remark on the Attorney General'sstatutory authority is more akin to an “aside like statement” or digression, United States v. Files,63 F.4th 920, 929 & n.7 (collecting similar examples), than a "determination of a matter of lawpivotal to its decision," Holding, Black's Law Dictionary (11th ed. 2019). See Georgia Ass'n ofLatino Elected Offs., Inc. v. Gwinnett Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1119–20 (11th Cir. 2022) (determining an earlier case's “prefatory statement” about a statute's operationwas dictum because it wasn't germane to resolving the issues presented).To be sure, that President Nixon delegated to the Special Prosecutor (via the regulation)the power to "determin[e] whether or not to contest the assertion of 'Executive Privilege' or anyother testimonial privilege,” 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805, was integralto Nixon's justiciability holding. 418 U.S. at 694–97. This delegation assured the Supreme Courtthat "concrete adverseness" existed between the parties. Id. at 697 (quoting Baker v. Carr, 369U.S. at 204); see id. at 696 (explaining that “[s] o long as this regulation remains in force theExecutive Branch is bound by it”). In other words, two features were essential to the justiciabilityholding: (1) the nature of the parties' relationship as defined in the very broad delegation ofauthority in the regulation; and (2) the fact that the regulation had not been revoked. But Nixon'spassing reference to statutory authority was not essential to the analysis, and nothing in theremainder of the decision suggests that the Supreme Court was reasoning from its earlier passing6363

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 64 of 93remark. 51 See Sarnoff v. Am. Home Prod. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (Posner, J.)(defining as "dictum” a “statement in a judicial opinion that could have been deleted withoutseriously impairing the analytical foundations of the holding—that, being peripheral, may not havereceived the full and careful consideration of the court that uttered it").D. As dictum, Nixon's statement is unpersuasive.Having determined that the disputed passage from Nixon is dictum, the Court considers theappropriate weight to accord it. In this circuit, Supreme Court dictum which is "well thought out,thoroughly reasoned, and carefully articulated" is due near-precedential weight. Schwab, 451 F.3dat 1325-26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound bySupreme Court dictum where it “is of recent vintage and not enfeebled by any subsequentstatement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)).The Nixon dictum is neither “thoroughly reasoned" nor “of recent vintage." Id. at 1325-26. Forthese reasons, the Court concludes it is not entitled to considerable weight.i.Nixon did not analyze the relevant statutes.First, Nixon does not engage in any statutory analysis of the cited provisions. AlthoughNixon "gave passing reference to the cited statutes," the opinion “provided no analysis of thoseprovisions' text." Trump, 144 S. Ct. at 2351 (Thomas, J., concurring). Indeed, the extent ofNixon's discussion of the statutes comes in a single sentence: "[Congress] vested in [the AttorneyGeneral] the power to appoint subordinate officers to assist him in the discharge of his duties. 28U.S.C. §§ 509, 510, 515, 533.” 418 U.S. at 694. No more is provided. Thus, giving Nixon'sdictum near-precedential weight in resolving the Motion-which calls for a thorough analysis of51 Nor can it be said that the Nixon Court's own language—“acting pursuant to [statutes]"-contains any substantive commentary on the validity of the cited statutes for appointment purposes[ECF No. 647 pp. 116-117 (Meese amici argument)].64

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 65 of 93the statutory text-runs the risk that the Supreme Court's "language will take on importance in anew context that its drafters could not have anticipated." Rudolph, 92 F.4th at 1045.ii.Nixon was decided prior to the development of recent AppointmentsClause jurisprudence.Second, Nixon was decided in 1974. In the subsequent half century, the Supreme Courthas placed a renewed emphasis on structural principles underpinning the Appointments Clause,beginning with Buckley v. Valeo, 424 U.S. 1 (1976), and continuing through various otherimportant cases. See generally Calabresi & Lawson, supra at 124–25 (examining the "rebirth ofthe Appointments Clause"); Freytag, 501 U.S. at 878; Edmond, 520 U.S. at 659–60; Weiss, 510U.S. at 182-189 (Souter, J., concurring); Arthrex, 594 U.S. at 12–14. These post-Nixondevelopments in Appointments Clause jurisprudence, and the Supreme Court's correspondingemphasis on structural principles behind that provision, lessen the force of the disputed dictum.iii. The out-of-circuit cases cited by the Special Counsel areequally unpersuasive.Special Counsel Smith cites two out-of-circuit appellate cases in support of his positionthat Nixon's statutory-authority statement is binding [ECF No. 374 pp. 9–10]. Both decisionsdetermined that Nixon was dispositive on the statutory-authority question. Respectfully, the Courtdisagrees. Like Nixon, neither engaged with the text of the statutes at issue.The Court starts with In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), which concerned achallenge to Independent Counsel Lawrence Walsh's prosecution of the Iran-Contra scandal. Asauthority for creation of the "Office of Independent Counsel: Iran/Contra," the Attorney Generalcited 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C. § 301. 829 F.2d at 55; see 28 C.F.R. § 601. Despiteexpressly stating that "these provisions”—that is, 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C.§ 301 "do not explicitly authorize the Attorney General to create an Office of Independent65

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 66 of 93Counsel virtually free of ongoing oversight,” the circuit court nevertheless "read them asaccommodating the delegation at issue here.” Id. at 55 (emphasis added). And then the courtstated, in an attached footnote, that Nixon "presupposed the validity of a regulation appointing theSpecial Prosecutor.” Id. at 55 n.30 (emphasis added). No analysis of the statutes was provided. 52More recently, in In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019), the samecircuit court addressed a challenge to the authority of Special Counsel Robert Mueller, acontemporary special counsel serving in a role akin to that of Special Counsel Smith. The courtcharacterized the abbreviated statutory-authority remarks from Nixon and In re Sealed Case asbinding, viewing them as necessary “antecedents" to those cases' holdings. Id. at 1053-54. Andthen, relying on those remarks, the court found no further analysis of the statutes to be necessary.Id. at 1054 ("Because binding precedent establishes that Congress has 'by law' vested authority inthe Attorney General to appoint the Special Counsel as an inferior officer, this court has no needto go further to identify the specific sources of this authority.").As the foregoing discussion demonstrates, the decisions in In re Sealed Case and In reGrand Jury Investigation relied on "presuppositions” and “antecedents” to determine that Nixon-which itself did not engage with the applicable statutory text- -was dispositive and foreclosed anystatutory challenge. But as explained above, the Supreme Court has cautioned that"presuppositions” and “antecedents" of this sort "are not binding in future cases that directly raisethe questions." Verdugo-Urquidez, 494 U.S. at 272. Unlike Nixon, this case does “directly raise"52 There may be other reasons to doubt the persuasive force of In re Sealed Case's holding. SeeCalabresi & Lawson, supra at 125-27 (arguing that the appellant in that case, Lt. Col. Oliver North,focused on the preemptive effect of the Independent Counsel Act, without raising a frontalchallenge to the Attorney General's appointment authority under the relied-upon statutes).6666

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 67 of 93the statutory-authority question. And because neither of the out-of-circuit cases considered thisquestion in a meaningful way, the Court does not find them persuasive here.In sum, the prefatory, passing remark in Nixon about 28 U.S.C. §§ 509, 510, 515, 533, doesnot stand as binding precedent for a point that was not raised, argued, disputed, or analyzed in thatcase, even if possibly assumed. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 557 (2001)(Scalia, J., dissenting) (collecting cases); Webster, 266 U.S. at 511. Nor would such a treatmentaccord with the tailored manner in which the Supreme Court has defined and described its ownAppointments Clause holdings in reference to the questions actually before it in those decisions. 53V. Principal versus Inferior Officer DesignationThis brings the Court to its final point on the Appointments Clause challenge, prior toaddressing remedy. Up to this juncture, the Court has proceeded under the premise, advanced bySpecial Counsel Smith, that he is an "inferior Officer," not a principal officer requiring Presidentialnomination and Senatorial consent [ECF No. 405 pp. 6–12]. Defendants and the Meese amicicontest this assertion, and it is a point worthy of consideration given the virtually unchecked powergiven to Special Counsel Smith under the Special Counsel Regulations. Ultimately, however, afterexamining the broad language in Supreme Court cases on the subject—and seeing a mixed picture,53 Freytag, 501 U.S. at 890 (“The appointment authority of the 'Courts of Law' was not beforethis Court in Buckley. Instead, we were concerned with whether the appointment of FederalElections Commissioners by Congress was constitutional under the Appointments Clause.");Weiss, 510 U.S. at 173 (distinguishing prior cases that "simply do not speak to the issue" beforethe Court); Edmond, 520 U.S. at 665–66 (holding that the implied principal-officer designation inFreytag "does not control our decision here" where the question was squarely presented). TheSupreme Court made this very point in a recently decided case, albeit not in the AppointmentsClause context. See Campos-Chaves v. Garland, 144 S. Ct. 1637, 1651 (2024) (explaining that aprior opinion's statement on the meaning of a statutory provision was dicta because that point "wasnot at issue," and the Court "did not reach out to decide today's question in that case").67

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 68 of 93even if a compelling one in favor of a principal designation—the Court elects, with reservations,to reject the principal-officer submission and to leave the matter for review by higher courts.A. Arguments of PartiesThe arguments on the Motion, developed further during argument, are as follows. SpecialCounsel Smith contends that he is an inferior officer because he is "subject to supervision andoversight by other officers appointed by the President with Senate consent" [ECF No. 405 p. 6].He cites to Morrison and Edmond for this proposition, stressing the following factors: (1) heis subject to removal by a higher Executive branch official for good cause, as was the case for thenow-defunct independent counsel; (2) he is empowered to perform “limited duties" within a"limited" jurisdiction that is temporary and expires when his charge is over; (3) he “reports to andis supervised by the Attorney General” based on the terms of the Special Counsel Regulations; and(4) when all else fails, the Attorney General can remove the extant regulation and create at-willremoval by amending or eliminating the regulation, or amending the Appointment Order itself[ECF No. 405 pp. 6–8].Defendants and the Meese amici take the principal-officer view, urging that SpecialCounsel Smith wields the same authority as a United States Attorney per the Regulations, withouta functional superior supervising or directing him, and without the important tool of at-willremoval [ECF No. 326 p. 9 ("The authority he attempts to employ as Special Counsel far exceedsthe power exercisable by a non-superior officer, authority that Congress has not cloaked himwith."); ECF No. 647 p. 7 (adopting Meese principal-officer argument); ECF No. 611 p. 3 (“Atbottom, former President Trump and amici argue the appointment of Special Counsel Jack Smithwas unconstitutional insofar as Smith is a “principal officer," whose appointment must come from8868

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 69 of 93the President alone with the advice and consent of the Senate."); ECF No. 364-1 pp. 20-22 (citingCalabresi & Lawson, supra at 128–134); ECF No. 647 pp. 25–32].B. Legal StandardsThe Supreme Court has "not purport[ed] to set forth a definitive test" for distinguishingbetween principal and inferior officers, although the relevant cases, principally Morrison andEdmond, provide informative markers. Edmond, 520 U.S. at 661; Morrison, 487 U.S. at 671.In Morrison v. Olson, 487 U.S. 654 (1988), the Court considered the status of the now-defunct independent counsel under the former Independent Counsel Act. The Court was careful"not [to] attempt to decide exactly where the line falls between the two types of officers," but itenumerated the following four factors in route to “clearly” determining that the independentcounsel fell on the inferior side of that line: (1) she was "subject to removal by a higher ExecutiveBranch official," even though she was not "subordinate” to the Attorney General given her“independent discretion"; (2) she was “empowered by the Act to perform only certain, limitedduties,” which did not include formulation of policy; (3) her office was “limited in jurisdiction” asdetermined by the judicial division; and (4) her office was “limited in tenure” insofar as she was"appointed essentially to accomplish a single task." Id. at 671-672. Justice Scalia criticized thisview in dissent, arguing that the independent counsel was not "subordinate to another officer" andwas removable only for good cause. Id. at 723 (Scalia, J., dissenting).Almost ten years later in Edmond v. United States, 520 U.S. 651 (1997), the Supreme Courtfleshed out the principal versus inferior officer inquiry in a case involving judges of the CoastGuard Court of Criminal Appeals. The bulk of the majority's analysis is contained in the passagequoted below, although further important considerations-removability at will and power torender final decisions-feature in the decision too:6969

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 70 of 93Generally speaking, the term 'inferior officer' connotes a relationship with somehigher ranking officer or officers below the President: Whether one is an “inferior”officer depends on whether he has a superior. It is not enough that other officersmay be identified who formally maintain a higher rank, or possess responsibilitiesof a greater magnitude. If that were the intention, the Constitution might have usedthe phrase "lesser officer." Rather, in the context of a Clause designed to preservepolitical accountability relative to important Government assignments, we think itevident that "inferior officers" are officers whose work is directed and supervisedat some level by others who were appointed by Presidential nomination with theadvice and consent of the Senate.Id. at 662–63. Continuing forward, the decision stressed that “[t]he power to remove officers. . . isa powerful tool for control," noting the parties' concession that the judicial officer at issue wasremovable without cause. Id. at 664 (citing Bowsher v. Synar, 478 U.S. 714, 727 (1986), andMyers v. United States, 272 U.S. 52 (1926)). And then, the Supreme Court commented on thedegree to which an officer's decisions can be “reverse[d]" or countermanded by a higher entity orofficer, ultimately concluding that the judges at issue remained inferior, because their decisionsstill were reviewed by a higher court, and because they lacked "power to render a final decisionon behalf of the United States unless permitted to do so by other Executive officers." Id. at 665.From these two decisions, courts have distilled three key factors in evaluating the inferior-principal question: (1) whether an officer is subject to substantial supervision and direction of aprincipal officer; (2) whether an officer is removable without cause perhaps the weightiest factor;and (3) whether an officer's decisions are subject to reversal by a supervisor in the executivebranch. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C.Cir. 2012); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613. Again, however, theSupreme Court “has been careful not to create a rigid test” for discerning between the two types7070

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 71 of 93of officers, instead employing what appears to be a "case-by-case analysis." Arthrex, 594 U.S. at47 (Thomas, J., dissenting).54C. DiscussionAgainst this backdrop, the Court examines whether Special Counsel Smith is a principalor inferior officer under the operative regulatory framework and available Supreme Courtstandards.55i.Factual DevelopmentAs a preliminary matter, the parties agree that the Court should evaluate the principalversus inferior question, and indeed the entire Appointments Clause dispute, as a matter of law inaccordance with the powers and authority delineated in the operative Special Counsel Regulationsand applicable statutes [ECF No. 619 p. 1; ECF No. 620 pp. 8–12; see ECF No. 617 pp. 7–13].The Court expresses some hesitation in this regard and lacks a detailed understanding of the actualextent and mechanics of supervision and control over Special Counsel Smith." Nevertheless,5654 Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SWGen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) (“Although we did not explicitlyoverrule Morrison in Edmond, it is difficult to see how Morrison's nebulous approach survivedour opinion in Edmond. Edmond is also consistent with the Constitution's original meaning andtherefore should guide our view of the principal-inferior distinction."); Concord Mgmt. &Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, becauseit has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond.Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the SupremeCourt's "prerogative of overruling its own decisions"). Defendants have not argued for theoverruling of Morrison in this court, although the matter was raised at argument by the LandmarkLegal amici [ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison)].55 The Court notes that neither party raises a direct challenge to the validity of the Special CounselRegulations, which have remained in effect without change since their promulgation in 1999.56 Cf. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 610-612 (appearing to express asimilar lack of clarity on degree of Attorney General's countermanding authority and extent towhich Department's policies shaped special counsel's actions).71

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 72 of 93neither party pressed for an evidentiary hearing on the Appointments Clause issue; the SpecialCounsel appears to have taken the questionable position that such inquiries intrude upon privilegedDepartment deliberations; and the Court generally agrees that judicial treatment of AppointmentsClause challenges has tracked the level of supervision and direction by reference to statutes and/orregulations only. 57 The Court thus proceeds accordingly, referencing the regulatory framework ineffect at the time of the subject Appointment Order and in force today. Nixon, 418 U.S. at 695("So long as this regulation is extant it has the force of law.") (citing United States ex rel. Accardiv. Shaughnessy, 347 U.S. 260, 265 (1954)); see Serv. v. Dulles, 354 U.S. 363, 372 (1957).ii.The Special Counsel Regulations impose almost no supervision ordirection over the Special Counsel and give him broad power to renderfinal decisions on behalf of the United States.The Special Counsel Regulations give to the special counsel an exceedingly broadcharge to "exercise, within the scope of his or her jurisdiction, the full power and independentauthority to exercise all investigative and prosecutorial functions of any United States attorney,"28 C.F.R. § 600.6—and then impose virtually no mechanism for supervision or control by theAttorney General. Several key features inform this view, tracking the regulations on the subjectsof consultation, supervision, and countermanding (with removal to follow later):First, a special counsel is under no regulatory obligation to consult with the AttorneyGeneral "about the conduct of his or her duties and responsibilities.” 28 C.F.R. § 600.6. Quite the57 What is more, during the hearing, and specifically during questioning about the SpecialCounsel's degree of direction and supervision vis-à-vis the Attorney General, counsel for theSpecial Counsel refused to answer the Court's questions regarding whether the Attorney Generalhad played any actual role in seeking or approving the indictment in this case [ECF No. 647pp. 147–151]. In doing so, counsel appeared to invoke a deliberative process privilege or other"standard Justice Department [policy]," although none of the Court's questions solicited thesubstance of any internal deliberations [ECF No. 647 pp. 147–151]. Ultimately, counsel for theSpecial Counsel appeared to acknowledge some degree of actual oversight consistent with theRegulations, but again resisted any further representation [ECF No. 647 p. 148].72

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 73 of 93opposite, it is up to the special counsel to determine whether to "inform or consult with theAttorney General or others within the Department about the conduct of his or her duties andresponsibilities." Id.Second, a special counsel must "comply with the rules, regulations, procedures, andpractices and policies of the Department,” and he shall "consult with appropriate offices within theDepartment for guidance with respect to [those] established practices.” 28 C.F.R. § 600.7(a). Butnothing in that general policy-consultation directive a directive that applies only to consultationwith "appropriate offices within the Department" about general Department-wide policies―appears to limit a special counsel's specific decision-making in conducting his investigation andprosecution.Third, still on the subject of consultation, the Regulations give full discretion to the specialcounsel whether to "consult directly with the Attorney General" even when the special counsel"conclude[s] that the extraordinary circ*mstances of any particular decision would rendercompliance with required review and approval procedures by the designated Departmentalcomponent inappropriate.” Id. § 600.7(a). So even in those difficult circ*mstances, the specialcounsel is the one to decide "whether to consult directly with the Attorney General," again leavingno mandatory consultation in the regulations themselves. Id.Fourth, turning to mechanisms for "notification" between the special counsel and theAttorney General, the Regulations require the special counsel to “notify the Attorney General ofevents in the course of his or her investigation in conformity with the Departmental guidelineswith respect to Urgent Reports." Id. § 600.8. But nothing in that provision actually requires thespecial counsel to do anything other than to “notify" the Attorney General of certain developments.See Justice Manual 1-13.000 (providing non-exhaustive list of “major developments,” but73

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 74 of 93explaining that Urgent Reports impose only a “reporting,” “notice requirement” that “should notinterrupt, alter, or delay the normal conduct and pursuit of any matter or case"). And nothing inthat provision provides the Attorney General with any authority to actually countermand, direct,or supervise those significant decisions.Fifth, and finally, the Regulations expressly remove day-to-day supervision and providealmost no countermanding authority for the Attorney General. Edmond, 520 U.S. at 665 (focusingon judges' power to "render a final decision on behalf of the United States unless permitted to doso by other Executive officers"). The pertinent regulation in this area is the “conduct andaccountability" section in 28 C.F.R. § 600.7(b), quoted in full below:The Special Counsel shall not be subject to the day-to-day supervision of anyofficial of the Department. However, the Attorney General may request that theSpecial Counsel provide an explanation for any investigative or prosecutorial step,and may after review conclude that the action is so inappropriate or unwarrantedunder established Departmental practices that it should not be pursued. Inconducting that review, the Attorney General will give great weight to the views ofthe Special Counsel. If the Attorney General concludes that a proposed action bya Special Counsel should not be pursued, the Attorney General shall notifyCongress as specified in § 600.9(a)(3).Id. § 600.7(b). This provision, reduced to its essence, leaves the Attorney General a very slimroute to countermand a decision by the special counsel, but only when the decision is "soinappropriate or unwarranted under established Departmental policies"; only after the AttorneyGeneral has given—as a mandatory matter—"great weight to the views of the Special Counsel";and subject to a strict congressional notification requirement that mandates the Attorney Generalnotify Congress of his "countermanding" decision at the conclusion of the investigation. Id.§ 600.7(b); id. § 600.9(a)(3) (requiring Attorney General to describe and explain to Congress"instances" in which he concluded "that a proposed action by a Special Counsel was soinappropriate or unwarranted under established Departmental practices that it should not be74

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 75 of 93pursued"). It is hard to see how this amounts to any meaningful direction or supervision. And itcertainly does not mean that the Special Counsel lacks the power to render final decisions on behalfof the United States. Edmond, 520 U.S. at 652.In sum, this framework does not lend itself to a finding that Special Counsel Smith's "workis directed and supervised at some level" by the Attorney General-unless the “at some level"qualifier in Edmond is read in an exceedingly broad way. 520 U.S. at 663.iii.The limitations on the Attorney General's power to remove the SpecialCounsel support principal status under Edmond but maybe not underMorrison.The Court now turns to the Attorney General's power to remove Special Counsel Smith."The power to remove officers at will and without cause is a powerful tool for control.” Edmond,520 U.S. at 663. This element features prominently in Edmond, which relied heavily on at-willremoval in finding inferior-officer status, but it also appears in Morrison, where the Supreme Courtclassified an independent counsel as an inferior officer even without at-will removal. Morrison,487 U.S. at 671, 691–92 (referring to 28 U.S.C. § 596(a)(1), and concluding that the Act's "goodcause" removal provision did not “impermissibly burden[] the President's power to control orsupervise the independent counsel").The particular removal provision in the Special Counsel Regulations reads as follows:The Special Counsel may be disciplined or removed from office only by thepersonal action of the Attorney General. The Attorney General may remove aSpecial Counsel for misconduct, dereliction of duty, incapacity, conflict of interest,or for other good cause, including violation of Departmental policies. The AttorneyGeneral shall inform the Special Counsel in writing of the specific reason for his orher removal.75

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 76 of 9328 C.F.R. § 600.7(d). “Good cause” is a far-reaching term that is difficult to define. See ConcordMgmt. & Consulting LLC, 317 F. Supp. 3d at 613. What is clear, however, is that the Regulationsdo not afford the Attorney General “at will” removal power. 58So what to make about the removal limitations in this case? On this point, the Court agreeswith the United States District Court in Concord Management that the Special CounselRegulations afford “more substantial protection against removal, and thus risk rendering him aprincipal officer," for the reasons stated in that decision and also referenced above. ConcordMgmt. & Consulting LLC, 317 F. Supp. 3d at 613-14 (citing cases). The Court need not expoundon the analysis further except to underscore the Supreme Court's strong emphasis on at-willremoval as a "powerful tool for control." Edmond, 520 U.S. at 664 (citing Bowsher, 478 U.S. at727; Myers, 272 U.S. 52 (1926)). But of course, Morrison deemed the independent counsel aninferior officer despite a good-cause removal restriction-albeit in the context of a multi-factoredapproach that did not purport to delineate the “line” between principal and inferior officers. 487U.S. at 671. And so, while it seems the absence of at-will removal is a key feature that—whencombined with the absence of any meaningful supervision or countermanding authority—likelycould transform Special Counsel Smith into a principal officer, the Court holds off on that view toallow whatever evaluation of this topic may be conducted by higher courts.iv.The possibility of a future rescission of the Special Counsel Regulationsto create at-will removal does not change the Appointments Clauseinquiry under current law.There is one final issue to discuss as relates to removal. It concerns the Special Counsel'sfall-back position that none of the removal limitations in the Regulations pose an impediment toinferior-officer status, because the Attorney General can rescind or amend the Regulations at will58 United States Attorneys are removable at will. 28 U.S.C. § 541(c).76

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 77 of 93(and without notice-and-comment), or can amend or revoke the Appointment Order. In a nutshell,the submission is as follows: evaluate the constitutional status of the Special Counsel's position inaccordance with the extant regulatory framework, as a matter of law, but if the removal issue getstoo sticky, customize that framework and consider the matter under a hypothetical future scenariowhere the regulation as it stands today (with its removal restrictions) does not exist [see ECF No.405 pp. 11–12; ECF No. 647 pp. 151-52]. In other words, rely on the Regulations for some things,but discard or amend them at least partially should they cast into doubt the Special Counsel'sinferior-officer status.This regulatory cherry-picking seems questionable as a means to resolve the inferior-principal Appointments Clause question, although the Court admits of uncertainty in this regard,and some courts have accepted the revocability piece as “crucial” in permitting an inferior-officerdesignation in similar contexts. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 615(quoting In re Sealed Case, 829 F.2d at 56)). Of course, regulations can be amended subject toordinary legal principles and any applicable restraints. But regulations have the force of law solong as they remain operative, which they are here. Nixon, 418 U.S. at 695 (“So long as thisregulation is extant it has the force of law.") (citing Accardi, 347 U.S. at 265); see Dulles, 354 U.S.at 372 (describing Accardi as supporting notion that “regulations validly prescribed by agovernment administrator are binding upon him as well as the citizen even when theadministrative action under review is discretionary in nature"). The question, then, is not whetherregulations can be rescinded or amended; they can be. Rather, the question is whether SpecialCounsel Smith is a principal or inferior officer under the Appointments Clause. And that inquiry,it seems to this Court, must operate on the basis of extant law (a point on which the Special Counselotherwise agrees)—not on some possible future material change to the removal limitations that77

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 78 of 93has not happened (and that frankly has not happened since the Regulations came into existence in1999). If the matter were otherwise, the practical result becomes one of “regulatory shielding”almost, in a figurative sense; an officer without authority to act as a principal officer exercises aprincipal-officer role, but no means exist to judicially test that constitutional noncompliancebecause the reviewing court-despite finding principal status in the present tense—must suspendreality and reject the challenge on the basis of something other than the operative regulations. Suchslipperiness would not be permitted if the officer were acting pursuant to statute; the court wouldreview the extant law in a fixed manner, as is normally the case in Appointments Clause challengeswith statutory law, not through shifting regulations or appointment orders untied to statutoryauthority. All of this simply underscores the need for Congress to enact “Law” in conformity withthe Appointments Clause. Art. II, § 2, cl. 2.V.The Special Counsel's defined jurisdiction and tenure present a mixedand candidly unhelpful picture.The final component of the Court's inferior-officer analysis concerns Special CounselSmith's jurisdiction and tenure. While Edmond did not stress these features, the Morrison courtconsidered them in reaching its inferior-officer conclusion. Morrison, 487 U.S. at 672 (findingthe Independent Counsel's office was “limited in jurisdiction” and “limited in tenure”). What theyyield here is muddled and likely not dispositive.Special Counsel Smith's jurisdiction is described in a factual statement in the AppointmentOrder. 59His jurisdiction is thus “limited" in the manner described by the Attorney General—as59 Order No. 5559-2022 (“The Special Counsel is further authorized to conduct the ongoinginvestigation referenced and described in the United States' Response to Motion for JudicialOversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC(S.D. Fla. Aug. 30, 2022) (ECF No. 48 at 5-13), as well as any matters that arose or may arisedirectly from this investigation or that are within the scope of 28 C.F.R. § 600.4."). 28 C.F.R.§ 600.4(a) (adding authority to investigate and prosecute perjury, obstruction of justice, destruction78

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 79 of 93compared, for example, to a United States Attorney with jurisdiction to investigate any violationof federal criminal law throughout a designated federal district. But the Special Counsel's powerswithin his jurisdiction are exceedingly broad, indeed as broad as those possessed by a United StatesAttorney. See Robert H. Jackson, U.S. Att'y Gen., Address at the Second Annual Conference ofUnited States Attorneys: The Federal Prosecutor 2 (Apr. 1, 1940) (referencing the might anddiscretion of prosecutors and their ability to "strike at citizens, not with mere individual strength,but with all the force of government itself”). And in some degree, the Special Counsel's powersare arguably broader than a traditional United States Attorney, as he is permitted to exercise hisinvestigatory powers across multiple districts within the same investigation. So is he reallyexercising “limited” jurisdiction? And what is the “unlimited” jurisdictional benchmark to whichhis work ought to be compared? The answers are hazy. In any event, an officer's scope of work,even if limited, is not dispositive of the jurisdictional inquiry. As Justice Scalia said of theindependent counsel in Morrison:As to the scope of her jurisdiction, there can be no doubt that is small (though farfrom unimportant). But within it she exercises more than the full power of theAttorney General. The Ambassador to Luxembourg is not anything less than aprincipal officer, simply because Luxembourg is small. And the federal judge whosits in a small district is not for that reason "inferior in rank and authority." If themere fragmentation of executive responsibilities into small compartments sufficesto render the heads of each of those compartments inferior officers, then Congresscould deprive the President of the right to appoint his chief law enforcement officerby dividing up the Attorney General's responsibilities among a number of “lesser"functionaries.Morrison, 487, U.S. at 718 (Scalia, J., dissenting).of evidence, and intimidation of witnesses, along with authority to conduct appeals out of matters"investigated and/or prosecuted"). As noted supra, the Appointment Order also authorizes SpecialCounsel Smith to investigate and prosecute federal crimes arising from an unrelated electoralmatter. Order No. 5559-2022. That prosecution is the subject of a separate proceeding in the U.S.District Court for the District of Columbia.1279

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 80 of 93As to tenure, while it is true that Special Counsel Smith's position will end “[a]t theconclusion" of his "work," see 28 C.F.R. § 600.8(c), whenever that happens, that circ*mstancedoes not equate to a “limited tenure” in a meaningful sense. Nor is it clear what the “unlimitedtenure" benchmark is, or how to measure it in real terms. What is known, however, is that theSpecial Counsel has been operating since November 2022; he has established a very significantoperation in terms of staffing and resources; his direct expenditures exceeded $12.8 million as ofclose to a year ago (September 2023); and nothing in the Regulations, the Appointment Order, orthe record more generally provides a concrete sunset provision for the cessation of his work.Bringing these factors together jurisdiction and tenure—the Court attempts to surmisethe following: (1) the Special Counsel's jurisdiction is “limited” if “limited jurisdiction” meanssomething less than the general jurisdiction exercised by a United States Attorney to prosecute anyfederal crime in one district (but see unlimited geographical reach in Appointment Order), and(2) the Special Counsel's tenure is “limited” if “limited in tenure" requires an open-endedappointment, perhaps with a fixed number of years. 28 U.S.C. § 541 (United States Attorneysserving four-term terms). The disposition of these factors is unclear, but they remain in theamalgam of considerations in Supreme Court caselaw.***For the above reasons, the Court sees compelling reasons to reach a principal-officerdesignation. But because the answer under current Supreme Court precedent is not self-evident,and because this Court need not rely on this ground to dispose of the Appointments Clausechallenge in the Motion, the Court elects to leave the matter for future review. Of course, however,8060

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 81 of 93should it be determined that Special Counsel Smith is a principal officer, his appointment wouldviolate the Appointments Clause without question. Art. II. § 2, cl. 2.60VI. Remedy for Appointments Clause ViolationThe Court turns lastly to the remedial question: what to do about the absence of “Law”authorizing Special Counsel Smith's appointment? Defendants seek dismissal of the SupersedingIndictment, arguing that “Jack Smith lacks the authority to prosecute this action,” and that "anyactions [thus] taken by Smith are ultra vires" [ECF No. 326 pp. 1, 9, 13; see ECF No. 414 p. 10;see ECF No. 364-1 (Meese amici)]. Special Counsel Smith opposes Defendants' request on themerits but fails to propose any alternative form of relief or to respond on the substance of theremedial question [see ECF No. 374; ECF No. 432 p. 9 n.5 (“Because the Special Counsel is anofficer authorized to carry out the prosecution in this case, the Court has no reason to consider60 The Landmark Legal amici argue that Special Counsel Smith is merely an “employee” notsubject to the Appointments Clause [ECF No. 410-2]. This position is based primarily on the viewthat the Special Counsel's position is not sufficiently “continuous" to warrant treatment as anofficer [ECF No. 410-2 pp. 11–15]. Neither party advances this contention, and the Courtdisagrees with it. By any measure, Special Counsel Smith is "exercis[ing] significant authoritypursuant to the laws of the United States." Buckley, 424 U.S. at 126. This is clear from theoperative regulations, 28 C.F.R. § 600.6, which empower him to act with the full scope and powerof a United States Attorney within his jurisdiction. Although the Supreme Court's decision inLucia does emphasize continuity as a factor distinguishing officers from employees, it does so inthe context of a comparison to “occasional” and “temporary duties," and it does not purport toestablish bright lines on the degree of continuity. 585 U.S. at 245 (comparing continuing andpermanent offices as distinct from temporary and episodic duties). Moreover, Lucia supports thecontinued vitality of the Buckley test, which no one disputes is satisfied by Special Counsel Smith.For these reasons, although Special Counsel Smith is not “permanent” in the forever sense becausehis jurisdiction will conclude at whatever unspecified time it concludes, his role clearly is not thesort of episodic, transient position that would make someone an employee under Germaine, 99U.S. at 511-512 (holding that civil surgeons who were hired to perform exams intermittently wereemployees only). The Court notes that neither the Regulations nor the Appointment Order sets atime limit on Special Counsel Smith's appointment, which is approaching two years in duration.And United States Attorneys serve four-year terms, 28 U.S.C. § 541(b), which are continuing evenif not permanent.81

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 82 of 93whether the Special Counsel action's to date are ‘salvageable' under the De Factor [sic] Officerdoctrine.")].61 Because Special Counsel Smith's exercise of prosecutorial power has not beenauthorized by law, the Court sees no way forward aside from dismissal of the SupersedingIndictment. And the Special Counsel does not propose an alternative course."[O]ne who makes a timely challenge to the constitutional validity of the appointment ofan officer. . .' is entitled to relief." Lucia, 585 U.S. at 251 (2018) (quoting Ryder, 515 U.S. at182-83). In such cases, which necessarily involve a "Government actor's exercise of power thatthe actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action.Collins v. Yellen, 594 U.S. 220, 258 (2021) (collecting cases); see id. at 276-83 (Gorsuch, J.,concurring). Invalidation "follows directly from the government actor's lack of authority to takethe challenged action in the first place. That is, winning the merits of the constitutional challengeis enough." Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 241 (5th61 Insofar as the Special Counsel may argue that additional briefing on remedy is warranted, theCourt explains the record and notes the Special Counsel's full and fair opportunity to brief thematter of remedy. This action presents a challenging array of issues, almost all of which areresolutely contested; the parties require no prompting before objecting, opposing, and otherwiseengaging in "spirited” exchanges. With respect to the instant Motion itself, both the SpecialCounsel and Defendant Trump submitted briefing; amicus briefs were received; and a lengthyhearing occurred. Yet startlingly, the Special Counsel submitted nothing on the topic of the properremedy for the Appointments Clause issue, despite challenging dismissal as a remedy in theAppropriations Clause context [ECF No. 374 pp. 22-23 (disputing dismissal and referencingalternative sources of funding); see ECF No. 671 (response to supplemental authority agreeing tosupplemental briefing “on the immunity issue" and nothing more)]. Instead, counsel for theSpecial Counsel remarked at the hearing, in response to a question about remedy in theAppropriations Clause context, that: "to the extent that the Court is seriously entertaining thenotion that there is a constitutional or funding problem, I actually think it would behoove the Courtand the parties to have some additional briefing” [ECF No. 648 p. 44]. This last-minute referenceto conditional supplemental briefing at the hearing-only if the Court disagreed with the SpecialCounsel on the merits—in no way signals a lack of a full and fair opportunity given to all partiesto brief their positions. Nor does it establish any prejudice from an alleged deprivation of a chanceto respond on the plainly important issue of the proper remedy for the Appointments Clause matter.8282

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 83 of 93Cir. 2022) (Jones, J., concurring). 62 In light of these remedial principles—and because the Courtconcludes that Special Counsel Smith's appointment violates the Appointments Clause-theactions of Special Counsel Smith in connection with this proceeding must be set aside.The Supreme Court's decision in Lucia v. SEC, 585 U.S. 237 (2018), serves as the bestcomparator for remedy purposes. In Lucia, the petitioner-a business owner who had beensanctioned by an administrative law judge for securities violations-raised a timely challenge tothe validity of the judge's appointment. Id. at 243-44. The Supreme Court sided with thepetitioner, concluding that the judge's appointment was constitutionally defective under theAppointments Clause. Id. at 251. Because the judge “heard and decided [the petitioner's] casewithout the kind of appointment the Clause requires,” the Court ruled that “the 'appropriate'remedy for an adjudication tainted with an appointments violation is a new ‘hearing before aproperly appointed' official." Id. at 251 (quoting Ryder, 515 U.S. at 183, 188). In other words,Lucia undid the unlawful action by granting petitioner a new hearing before a constitutionallyappointed officer.Here, as in Lucia, the appropriate remedy is invalidation of the officer's ultra vires acts.Since November 2022, Special Counsel Smith has been exercising "power that [he] did notlawfully possess." Collins, 594 U.S. at 258. All actions that flowed from his defectiveappointment—including his seeking of the Superseding Indictment on which this proceeding62 Collins distinguished these situations from other separation-of-powers cases involving lawscontaining improper removal provisions. 594 U.S. at 257–59. In those cases, the proper remedyis often to sever the violative removal provision from the rest of the law. See Seila L. LLC v.Consumer Fin. Prot. Bureau, 591 U.S. 197, 232-38 (2020); Free Enter. Fund v. Pub. Co. Acct.Oversight Bd., 561 U.S. 477, 508–10 (2010). Full-scale invalidation is not necessary to rectify theharm in such cases because “the unlawfulness of the removal provision does not strip" a lawfullyappointed government actor "of the power to undertake the responsibilities of his office." Collins,594 U.S. at 258 n.23. That is not the case here, where the matter goes to the core of appointment.83

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 84 of 93currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because SpecialCounsel Smith "cannot wield executive power except as Article II provides," his “[a]ttempts to doso are void" and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance thisvery argument: "any actions taken by Smith are ultra vires and the Superseding Indictment mustbe dismissed" [ECF No. 326 p. 9]. And the Court sees no alternative course to cure theunconstitutional problem.It bears noting that Special Counsel Smith's work cannot be salvaged by the de facto officerdoctrine, which, in some circ*mstances, "confers validity upon acts performed by a person actingunder the color of official title even though it is later discovered that the legality of that person'sappointment or election to office is deficient." Ryder, 518 U.S. at 180 (citing Norton v. ShelbyCounty, 118 U.S. 425, 440 (1886)).For two reasons, that doctrine does not apply here.63 First, the doctrine is designed toaddress "technical defects in title to office." Ryder, 518 U.S. at 180 (internal quotations marksomitted); see Nguyen v. United States, 539 U.S. 69, 77–78 (2003). Here, the problem is no mere"technical defect”—instead, the problem is the absence of a statutorily created office to fill in thefirst place. As the Supreme Court has made clear, “there can be no officer, either de jure or defacto, if there is no office to fill." Norton, 118 U.S. at 441. Second, the de facto officer doctrinehas not been applied in cases, like this one, where a litigant raises a timely constitutional challengeto an officer's appointment. See Ryder, 539 U.S. at 182-83 ("We think that one who makes a63 The de facto officer doctrine was covered noncommittally in the Landmark Legal amici's brief[ECF No. 410-2 pp. 23-24]. The Special Counsel offered a non-response in a footnote: "Becausethe Special Counsel is an officer authorized to carry out the prosecution in this case, the Court hasno reason to consider whether the Special Counsel's actions to date are 'salvageable' under the DeFactor [stet] Officer doctrine” [ECF No. 432 p. 9 n.5].84

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 85 of 93timely challenge to the constitutional validity of the appointment of an officer who adjudicates hiscase is entitled to a decision on the merits of the question and whatever relief may be appropriateif a violation indeed occurred."); Lucia, 585 U.S. at 251. “Any other rule would create adisincentive to raise Appointments Clause challenges” in the face of questionable appointments.Ryder, 539 U.S. at 183; see Lucia, 585 U.S. at 251 n.5. Because Defendants timely raised theirconstitutional challenge to Special Counsel Smith's appointment, and because there can be novalid officer without a valid office, the Court sees no basis to resort to the de facto officerdoctrine.64APPROPRIATIONS CLAUSE DISCUSSIONThe Court turns next to Defendants' Appropriations Clause challenge [ECF No. 326 pp. 9–14].65 Since its inception, Special Counsel Smith's office has been funded by “a permanent64 The Supreme Court's decision in Off. of United States Tr. v. John Q. Hammons Fall 2006, LLC,144 S. Ct. 1588, 1595 (2024), is not to the contrary [See ECF No. 648 pp. 42–43]. That caseinvolved how to remedy a “limited” Bankruptcy Clause problem flowing from a federalbankruptcy statute-not the constitutionality of an officer's appointment under the AppointmentsClause. Id. (focusing on the "short lived and small" nature of the "constitutional problem"). Morefundamentally, that case does not detract from the principle that “the nature of the violationdetermines the scope of the remedy." Id. (quoting Swann v. Charlotte-Mecklenburg Bd. of Ed.,402 U.S. 1, 16 (1971)). Here, for all of the reasons stated, the only appropriate remedy for thepreserved constitutional challenge under the Appointments Clause-a challenge that implicatesseparation of powers—is invalidation of the proceeding.65 Defendants have Article III standing to raise their Appropriations Clause challenge. TheSupreme Court has recognized that standing exists in “cases in which individuals sustain discrete,justiciable injury from actions that transgress separation-of-powers limitations.” Bond v. UnitedStates, 564 U.S. 211, 224 (2011); Collins, 594 U.S. at 245. Violations of the Appropriations Clauseare one such example. See United States v. McIntosh, 833 F.3d 1163, 1173–74 (9th Cir. 2016)(holding that appellants "ha[d] standing to invoke separation-of-powers provisions of theConstitution" there, the Appropriations Clause—“to challenge their criminal prosecutions" priorto conviction); see United States v. Stone, 394 F. Supp. 3d 1, 19 n.13 (D.D.C. 2019). To the extentthat Special Counsel Smith challenged Defendants' standing to raise this argument in hisOpposition or attempted to cast the challenge as a non-constitutional claim, he declined to standby those contentions at the hearing [ECF No. 648 pp. 46–48].85

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 86 of 93indefinite appropriation . . . established within the Department of Justice to pay all necessaryexpenses of investigations and prosecutions by independent counsel appointed pursuant to theprovisions of 28 U.S.C. 591 et seq. or other law." 101 Stat. 1329. But as discussed above, suprapp. 22-52, Special Counsel Smith was not lawfully “appointed pursuant to . . . other law." 101Stat. 1329. This means that Special Counsel Smith's office—since November 2022―has beendrawing funds from the Treasury without statutory authorization, in violation of the AppropriationsClause.I.Background Legal PrinciplesThe Appropriations Clause dictates that “[n]o Money shall be drawn from the Treasury,but in Consequence of Appropriations made by Law.” U.S. Const. Art. I, § 9, cl. 7. This"straightforward and explicit command . . . means simply that no money can be paid out of theTreasury unless it has been appropriated by an act of Congress." Office of Pers. Mgmt. v.Richmond, 496 U.S. 414, 424 (1990) (citation omitted). To pass constitutional muster, anappropriation "need only identify a source of public funds and authorize the expenditure of thosefunds for designated purposes.” CFPB v. Cmty. Fin. Servs. Ass'n of Am., Ltd., 601 U.S. 416, 426(2024) ("CFPB").666 Defendants do not challenge the Indefinite Appropriation itself—only its applicability to SpecialCounsel Smith [ECF No. 326 pp. 12–14]. The Court expresses some uncertainty, however, aboutthe legality of the purely "indefinite" nature of the appropriation, which by all accounts is uncappedand includes no monetary threshold or other formulaic limitation. It is not clear whether thatfeature, on its own, presents a constitutional defect under the Appropriations Clause. See CFPB,601 U.S. at 425-41 (emphasizing repeatedly the “capped" nature of the CFPB's funding schemein determining it complied with the Appropriations Clause); but see id. at 444 (Kagan, J.,concurring) (identifying certain statutes that do not "designate specific sums of money"). All thatsaid, the limitless nature of the appropriation, standing alone, was not squarely raised in thisproceeding.86

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 87 of 93The Appropriations Clause plays a critical role in our constitutional scheme of separatedpowers. It is Congress not the executive or judicial branches-that controls governmentspending. "Any exercise of a power granted by the Constitution to one of the other branches ofGovernment is limited by a valid reservation of congressional control over funds in the Treasury."Id. at 425. As a historical matter, “Congress's 'power over the purse' has been its 'most completeand effectual weapon' to ensure that the other branches do not exceed or abuse their authority."CFPB, 601 U.S. at 448 (Alito, J., concurring) (quoting The Federalist No. 58, p. 359 (C. Rossitered. 1961) (J. Madison)). See also Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33F.4th 218, 225-232 (5th Cir. 2022) (Jones, J., concurring) (discussing in detail the historicalorigins, and separation-of-powers underpinnings of the Appropriations Clause).II.AnalysisBy its terms, the Indefinite Appropriation is available only to “independent counsel[s]appointed pursuant to the provisions of 28 U.S.C. § 591 et seq. or other law." 101 Stat. 1329. TheIndependent Counsel Act expired in 1999, meaning that Special Counsel Smith must identify"other law" authorizing his appointment to access the Indefinite Appropriation. Both sides agreethat “other law,” for present purposes, is the collection of statutes cited in the Appointment Order[ECF No. 648 pp. 5, 31]. For all of the reasons the Court found no statutory authority for theappointment, supra pp. 22-52, Special Counsel Smith's investigation has unlawfully drawn fundsfrom the Indefinite Appropriation. 6767 Nor do the Special Counsel Regulations serve as “other law" for purposes of access to theIndefinite Appropriation [ECF No. 374 p. 18 (arguing that 28 C.F.R. § 600 has “the force of law"for purposes of the Indefinite Appropriation); but see ECF No. 648 p. 31 (agreeing that “other law”in the Independent Appropriation refers to statutory law only)].87

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 88 of 93Having found no "other law," the Court need not determine whether Special Counsel Smithis the type of "independent counsel" referenced in the Indefinite Appropriation [ECF No. 326pp. 13-14 (arguing Smith is not sufficiently “independent" to access funds)].68 Nevertheless, theCourt notes the inherent tension in the Special Counsel's position on this issue. In theAppointments Clause context-specifically, in arguing that he is an inferior (as opposed toprincipal) officer-Special Counsel Smith emphasizes the Attorney General's supervision andcontrol over his work [ECF No. 374 p. 7 n.1; ECF No. 405]. Yet in the Appropriations Clausecontext, he asserts that he is sufficiently independent to draw funds from the IndefiniteAppropriation [ECF No. 374 pp. 17-18]. In other words, Special Counsel Smith contends he isindependent enough to access the funds, but not so independent to constitute a principal officer.Perhaps he threads that needle. But at least one source suggests otherwise. In 2004, theGovernment Accountability Office (GAO) approved of Special Counsel Patrick Fitzgerald's useof funds from the Indefinite Appropriation. Special Counsel and Permanent IndefiniteAppropriation, B-302582, 2004 WL 2213560 (Sept. 30, 2024). The GAO's determination wasgrounded in Fitzgerald's “express exclusion . . . from the application of 28 C.F.R. Part 600 [i.e.,the Special Counsel Regulations]," which allowed him to operate “independent of the supervisionor control of any officer of the Department.” Id. at 3.69 Contrast Fitzgerald with Special Counsel68 Were the Court required to conduct that analysis, it is unclear precisely how “independent” an"“independent counsel" must be to draw from the Indefinite Appropriation. The Court accepts,however, that independent counsels need not be strictly equivalent to the “Independent Counsels"authorized by the now-defunct EGA. See Stone, 394 F. Supp. 3d at 20–22.69 Then-Acting Attorney General James Comey directed Special Counsel Fitzgerald to exercisehis authority "independent of the supervision or control of any officer of the Department." Letterfrom Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Dec. 30, 2003). In a laterletter, Comey clarified that Fitzgerald's position as "Special Counsel” “should not bemisunderstood to suggest that [his] position and authorities are defined and limited by 28 CFR Part600." Letter from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Feb. 6, 2004).8888

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 89 of 93Smith, who—by the express terms of the Appointment Order and by his own admission—is subjectto the Special Counsel Regulations, and subject to the supervision and control of the AttorneyGeneral.As mentioned above, the Court need not decide the "independence" issue given the absenceof statutory law authorizing the appointment. But at the very least, the “independence" questionraises doubts.III. RemedyThis leaves remedy for the Appropriations Clause violation. Defendants argue thatdismissal is the only way to cure the funding violation [ECF No. 326 p. 12; ECF No. 414 p. 9].Special Counsel Smith opposes dismissal, asserting without any specificity or even willingnessto engage in factfinding [see ECF No. 620 p. 3]—that “the Department could readily have fundedthe Special Counsel from other appropriations that were available” [ECF No. 374 p. 25]. At thehearing, Special Counsel Smith represented, "at a relatively high level of generality," that DOJ"has appropriated, at least in the 2023 appropriation cycle, over a billion dollars," which it isprepared to use to fund the Special Counsel's office [ECF No. 648 pp. 41-42]. The Court neednot reach the question of remedy here, having found the Appointments Clause violation to warrantdismissal. Supra pp. 81–85. But as discussed below, there is good reason to believe that theAppropriation Clause violation serves as a separate, independent basis to dismiss."Across remedial contexts, the nature of the violation determines the scope of the remedy."John Q. Hammons Fall 2006, LLC, 144 S. Ct. at 1594 (internal quotation marks omitted). As faras the Court can tell, there is no Supreme Court or Eleventh Circuit precedent that speaks directlyto this point. Given the absence of binding precedent on the issue, the Court finds instructive8969

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 90 of 93Judge Edith Jones's concurrence in Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc.,33 F.4th 218 (5th Cir. 2022) (Jones, J., concurring), a case involving a civil enforcement actionbrought by the CFPB. Id. at 220-42.70 All American concerned whether the CFPB's structureviolated the Constitution's separation of powers. Id. at 220. In a per curiam opinion, the courtvacated and remanded the district court's order in light of the Supreme Court's decision in SeilaLaw LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020). Id. Judge Jones concurred, writingseparately to make the case that the CFPB's funding mechanism violated the AppropriationsClause. Id. at 220-42 (Jones, J., concurring). Likening an unlawfully funded enforcement actionto unauthorized government action, Judge Jones advanced that dismissal was the proper remedy:Just as a government actor cannot exercise power that the actor does not lawfullypossess, so, too, a government actor cannot exercise even its lawful authority usingmoney the actor cannot lawfully spend. Indeed, a constitutionally properappropriation is as much a precondition to every exercise of executive authority byan administrative agency as a constitutionally proper appointment or delegation ofauthority.Id. at 242. Surveying cases in which a government actor took action without constitutionalauthority, Judge Jones concluded that the appropriate remedial course was to "disregard thegovernment action.” Id. “[B]ecause the CFPB funds the instant prosecution using unconstitutionalself-funding, I would dismiss the lawsuit." Id.There is a strong, intuitive appeal to applying Judge Jones's logic here. The SpecialCounsel's office has spent tens of millions of dollars since November 2022, all drawnunconstitutionally from the Indefinite Appropriation. That funding has served as “the verylifeblood that empower[ed] it to act.” Id. at 241. Perhaps, as suggested generally at the hearing,70 Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616, 642-43 (5thCir. 2022), is a related case (overruled on other grounds in CFPB), that provides helpful analysison remedies in the Appropriations Clause context.9090

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 91 of 93DOJ could reallocate funds to finance the continued operation of Special Counsel Smith's office[ECF No. 648 pp. 41-42]. This would require further development of the record. But even if thiswere prospectively possible, what to make of the prior action? For more than 18 months, SpecialCounsel Smith's investigation and prosecution has been financed by substantial funds drawn fromthe Treasury without statutory authorization, and to try to rewrite history at this point seems nearimpossible. The Court has difficulty seeing how a remedy short of dismissal would cure thissubstantial separation-of-powers violation, but the answers are not entirely self-evident, and thecaselaw is not well developed. For that reason, and given the disposition of this Order onAppointments Clause grounds, the Court leaves the matter of funding remedy for any applicablefuture review.71CONCLUSIONUpon careful study of the foundational challenges raised in the Motion, the Court isconvinced that Special Counsel's Smith's prosecution of this action breaches two structuralcornerstones of our constitutional scheme-the role of Congress in the appointment ofconstitutional officers, and the role of Congress in authorizing expenditures by law.The Framers gave Congress a pivotal role in the appointment of principal and inferiorofficers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether inthis case or in another case, whether in times of heightened national need or not. In the case ofinferior officers, that means that Congress is empowered to decide if it wishes to vest appointmentpower in a Head of Department, and indeed, Congress has proven itself quite capable of doing soin many other statutory contexts. But it plainly did not do so here, despite the Special Counsel's71 As in the Appointments Clause context, the de facto officer doctrine does not apply here. Seesupra pp. 84-85.91

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 92 of 93strained statutory readings. Nor does his appeal to inconsistent "historical practice” supplant theabsence of textual authorization for his appointment. The same structural emphases resonate inthe context of the Appropriation Clause, which “embodies a fundamental separation of powersprinciple subjugating the executive branch to the legislatures power of the purse." All American,33 F.4th at 221 (Jones, J., concurring).In the end, it seems the Executive's growing comfort in appointing “regulatory" specialcounsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhapsthis can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases.Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can beexplained by the relative infrequency of these types of investigations, by congressional inattention,or by the important roles that special-counsel-like figures have played in our country's history.Regardless of the explanation, the present Motion requires careful analysis of the statutorylandscape to ensure compliance with the Constitution, and the Court has endeavored to do so withcare.The Court thus returns to where it started. The Appointments Clause is “among thesignificant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So toois the Appropriations Clause, which carefully separates Congressional control of the "purse" fromExecutive control of the "sword." The Federalist No. 78 (Alexander Hamilton). The consequencesof relaxing either of those critical provisions are serious, both in this case and beyond. As JusticeFrankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does notcome in a day. It does come, however slowly, from the generative force of unchecked disregardof the restrictions that fence in even the most disinterested assertion of authority." YoungstownSheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate9292

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 93 of 93and unconstitutional practices get their first footing... by silent approaches and slight deviationsfrom legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886).***For the reasons set forth above, it is ORDERED AND ADJUDGED as follows:1. Defendants' Motion to Dismiss Superseding Indictment Based on Unlawful Appointmentand Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order[ECF No. 326].2. The Superseding Indictment [ECF No. 85] is DISMISSED.3. This Order is confined to this proceeding. The Court decides no other legal rights or claims.4. This Order shall not affect or weaken any of the protections for classified informationimposed in this case or any protective orders pertaining to classified information.5. The Clerk is directed to CLOSE this case. Any scheduled hearings are CANCELLED.Any pending motions are DENIED AS MOOT, and any pending deadlines areTERMINATED.DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 15th day of July 2024.CC:counsel of record9393AILEEN M. CANNONUNITED STATES DISTRICT JUDGE