Were Mueller and Smith (Independent Special Counsels) Required to be Senate Approved Before Directing Investigations?

posted 12/22/2023) - During the Mueller Investigation of then President Trump an argument was put forth by Steven Calabresi (special assistant to Reagan era Attorney General Edwin Meese) that the scope of Mueller's investigation required he be classified as "a principle officer" necessitating a senate confirmation according to current DOJ practices. This was never tested directly by the courts and the Mueller Report never resulted in prosecution of Trump. The argument became moot.

Jack Smith was subsequently appointed by the Attorney General as independent special counsel to investigate two potential charges against former president Trump (knowingly withholding classified documents and obstruction of congress).

This week Calabresi and his old boss Edwin Meese have again raised the question (after Smith's recent request that the Supreme Court rule on Presidential Immunity limitations). They argue that Smith is a principle officer and as such needed to go through Senate confirmation hearings before being allowed to take on his role.

On the surface this sounds like a real problem -- it comes down to a legal interpretation of Smith's remit. Is he a principle officer or an "inferior officer" who can be appointed by the AG and fired by the AG at will.

Here's the best description I could find at this point in time on how to interpret the requirements of an AG appointed "independent special counsel." It was provided by David Sklansky, who teaches criminal law at Stanford. Note that the law that created the three-judge panel has sunsetted; the DOJ AG has effectively become the appointing entity.

"In 1988, the Supreme Court ruled in Morrison v. Olson that the Constitution allowed an Independent Counsel to be appointed by a three-judge court, completely separate from the Executive Branch," Sklansky said via email. "In reaching that conclusion, the Supreme Court held that an Independent Counsel is an 'inferior officer,' not a 'principal officer,' for reasons that very clearly apply to Mueller: (a) he can be removed by a higher-ranking Department of Justice official, (b) he is authorized only to investigate and, if appropriate, prosecute, particular federal crimes, not to formulate Department of Justice policy, and (c) his jurisdiction is limited to the matters delegated to him by the Department of Justice.

The same reasoning applies to Smith -- but the question of the boundary may still end up being ruled upon by the courts. If the Supreme Court were to rule that Smith needed Senate confirmation to perform his role then everything done to date would be reset and need to start over. I await with bated breath the follow-on discussion in the courts (if this argument is applied by the Trump legal team).