Ed Meese DC Court of Appeals Amicius

USCA Case #23-3228 Document #2033813 Filed: 12/30/2023 Page 1 of 44
ORAL ARGUMENT SET FOR JANUARY 9, 2024

No. 23-3228
United States Court of Appeals

for the District of Columbia Circuit
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD J. TRUMP,
Defendant-Appellant.
Appeal from the U.S. District Court for the District of Columbia
Criminal Case No. 1:23-cr-00257-TSC (Hon. Tanya S. Chutkan)
BRIEF OF FORMER ATTORNEY GENERAL EDWIN MEESE III

AND LAW PROFESSORS
STEVEN G. CALABRESI AND GARY S. LAWSON
AS AMICI CURIAE SUPPORTING NEITHER PARTY
GENE C. SCHAERR
Counsel of Record
JUSTIN A. MILLER*
AARON C. WARD*
SCHAERR | JAFFE LLP
1717 K Street NW, Suite 900
Washington, DC 20006
(202) 787-1060
[email protected]
December 30, 2023 Counsel for Amici Curiae
CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW,

AND RELATED CASES
Amici curiae former Attorney General Edwin Meese III and law
professors Steven G. Calabresi and Gary S. Lawson certify as follows:
A. Parties and Amici
Except for the following amici in this Court, all parties, intervenors,
and amici appearing before the district court and in this Court are listed
in the Briefs for Plaintiff-Appellee and Defendant-Appellant. In addition
to the amici in the court below and those named in this brief, the
following amici have filed briefs in this Court as of the time this Brief
was finalized for filing: Bradford A. Berenson, Gregory A. Brower, Tom
Campbell, Ty Cobb, Tom Coleman, George T. Conway III, John J. Farmer
Jr., Patrick J. Fitzgerald, William Kristol, Philip Allen Lacovara, John
McKay, Trevor Potter, Claudine Schneider, Fern M. Smith, Olivia Troye,
William F. Weld, and American Oversight.
B. Rulings Under Review
References to the rulings at issue appear in the Briefs for Plaintiff-
Appellee and Defendant-Appellant.
i
C. Related Cases
References to related cases appear in the Briefs for the Plaintiff-
Appellee and Defendant-Appellant.
/s/ Gene C. Schaerr

GENE C. SCHAERR
Counsel of Record
ii
CORPORATE DISCLOSURE STATEMENT
Amici curiae former Attorney General Edwin Meese III and law
professors Steven G. Calabresi and Gary S. Lawson certify that they are
natural persons, and as such have no parent corporations or stock.
/s/ Gene C. Schaerr

GENE C. SCHAERR
Counsel of Record
SCHAERR | JAFFE LLP
(202) 787-1060
[email protected]
iii
STATEMENT PURSUANT TO D.C. CIRCUIT RULE 29(d)
A separate brief is necessary for the presentation to this Court of
present amici’s distinctive views of the ultra vires appointment of Special
Counsel Jack Smith, a point not previously raised by the parties but that
can be addressed for the first time on appeal by this Court. Because these
amici are not filing in support of either party and not requesting vacatur,
unlike other amici in this case, it is not possible to consolidate amicus
briefs.
/s/Gene C. Schaerr
GENE C. SCHAERR
Counsel of Record
SCHAERR | JAFFE LLP
(202) 787-1060
[email protected]
iv
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW,

AND RELATED CASES ........................................................................i
CORPORATE DISCLOSURE STATEMENT ......................................... iii
STATEMENT PURSUANT TO D.C. CIRCUIT RULE 29(d) .................. iv
TABLE OF AUTHORITIES ....................................................................vii
STATEMENT OF IDENTITY, INTEREST IN CASE, AND
SOURCE OF AUTHORITY TO FILE .................................................. 1
SUMMARY OF ARGUMENT ................................................................... 2
ARGUMENT ............................................................................................. 6
I. No Statute Authorizes the Position of Special Counsel
Supposedly Held by Smith. ......................................................... 6
A. Only Congress Can Create a Federal Office. ..................... 6
B. The Organic Statutes of the Department of Justice
Do Not “By Law” Vest in the Attorney General of the
United States the Power to Appoint Officers with
the Power of Supposed Special Counsel Smith.................. 9
II. The Appointments Clause Establishes a Default Rule that
All Heads of Departments, Principal Officers, and
Superior Officers Require Presidential Nomination,
Senate Confirmation, and then Presidential
Appointment. ............................................................................. 23
III. Even If Special Counsels Were Statutorily Authorized,
They Would Be Superior Officers Who Would Need
Presidential Nomination and Senate Confirmation. ................ 26
IV. This Panel is Not Bound by Contrary Circuit Precedent
because Seila Law is Supervening Authority, and This
Issue May be Reached Sua Sponte on Appeal. ......................... 30
CONCLUSION ........................................................................................ 32
v
CERTIFICATE OF COMPLIANCE ........................................................ 34

CERTIFICATE OF SERVICE................................................................. 35
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Biden v. Nebraska, 143 S.Ct. 2355 (2023) .............................................. 33
Buckley v. Valeo¸ 424 U.S. 1 (1976) ............................................ 30, 32, 35
Dynaquest Corp. v. USPS, 242 F.3d 1070 (D.C. Cir. 2001) .................... 40
Free Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477 (2010) .................................................................. 38
Freytag v. Comm’r, 501 U.S. 868 (1991) ................................................. 40
Gregory v. Ashcroft, 501 U.S. 452 (1991) ................................................ 33
In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019) ........... 38
Irons v. Diamond, 670 F.2d 265 (D.C. Cir. 1981) ................................... 39
Lucia v. SEC, 138 S.Ct. 2044 (2018) ..................................... 18, 27, 30, 34
Maxwell v. Snow, 409 F.3d 353 (D.C. Cir. 2005) .................................... 39
Nat’l Env’t Dev. Ass’ns Clean Air Project v. EPA, 891 F.3d 1041
(D.C. Cir. 2018)..................................................................................... 39
PHH Corp. v. C.F.P.B., 881 F.3d 75 (D.C. Cir. 2018) ............................... 9
United States v. Nixon, 418 U.S. 683 (1974)..................................... 11, 29
We the People Found., Inc. v. United States, 485 F.3d 140 (D.C.
Cir. 2007) ................................................................................................ 9
Statutes
18 U.S.C. 4041 ......................................................................................... 34
20 U.S.C. 3461 ......................................................................................... 33
28 U.S.C. 509 ............................................................................... 11, 19, 20
28 U.S.C. 510 ............................................................................... 11, 19, 20
28 U.S.C. 515 ............................................................................... 11, 21, 23
28 U.S.C. 532 ........................................................................................... 27
28 U.S.C. 533 ............................................................. 11, 26, 27, 28, 29, 30
28 U.S.C. 534 ........................................................................................... 27
vii
28 U.S.C. 543 ........................................................................................... 23

28 USC 519 .............................................................................................. 23
42 U.S.C. 913 ........................................................................................... 34
49 U.S.C. 323 ........................................................................................... 34
5 U.S.C. 301 ............................................................................................. 19
5 U.S.C. 3101 ........................................................................................... 18
7 U.S.C. 610 ............................................................................................. 33
Ethics in Government Act of 1978, Pub. L. No. 95-521 .............. 18, 26, 29
Other Authorities
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (MAX
FARRAND ED., 1911) ............................................................................... 32
David E. Engdahl, What’s in a Name? The Constitutionality of
Multiple “Supreme” Courts, 66 Ind. L.J. 457 (1991)............................ 37
Gov’t Mot. in Limine, United States v. Trump, No. 1:23-cr-257-
TSC (D.D.C.) ......................................................................................... 36
Regulations
28 C.F.R. 600.1 ........................................................................................ 19
28 C.F.R. 600.3 ........................................................................................ 19
Off. of the Att’y Gen., “Appointment of John L. Smith as Special
Counsel,” Order No. 5559-2022 (Nov. 18, 2022) ............................ 11, 19
Office of Special Counsel, 64 Fed. Reg. 37,038-01 (July 9, 1999)
(codified at 28 C.F.R. 600.1–600.10) .................................................... 18
Constitutional Provisions
U.S. Const. art. II, §1, cl. 6 ...................................................................... 28
U.S. Const. art. II, §2, cl. 2 ................................................................ 11, 18
U.S. Const., art. II, §2 ............................................................................. 31
U.S. Const., art. II, §4 ............................................................................. 28
viii
STATEMENT OF IDENTITY, INTEREST IN CASE, AND

SOURCE OF AUTHORITY TO FILE1
Given their interest in the rule of law, the legal issue this brief
addresses is particularly important to amici. The Honorable Edwin
Meese III served as the seventy-fifth Attorney General of the United
States after having served as Counselor to the President, and is now the
Ronald Reagan Distinguished Fellow Emeritus at the Heritage
Foundation. During his tenure as Attorney General, the Department of
Justice steadfastly defended proper limits on federal power. Professors
Calabresi and Lawson are scholars of the original public meaning of the
Constitution. Members of this Court have cited their work. See, e.g., PHH
Corp. v. C.F.P.B., 881 F.3d 75, 104 (D.C. Cir. 2018) (Pillard, J.) (citing
Calabresi); We the People Found., Inc. v. United States, 485 F.3d 140, 144
(D.C. Cir. 2007) (Rogers, J., concurring) (citing Lawson).
Amici urge this court to vacate the district court’s judgment and to
order dismissal of Defendant’s prosecution for failure of prosecutorial
authority.
1All parties have consented to the filing of this brief. No party or counsel
for a party authored this brief in whole or part, and no entity or person,
other than amici and their counsel, have contributed funds for
preparation or submission of this brief.
1
SUMMARY OF ARGUMENT
Jack Smith does not have authority to conduct the underlying
prosecution. Those actions can be taken only by persons properly
appointed as federal officers to properly created federal offices. Neither
Smith nor the position of Special Counsel under which he purportedly
acts meets those criteria. And that is a serious problem for the American
rule of law—whatever one may think of the Defendant or the conduct at
issue in the underlying prosecution.
The illegality addressed in this brief started on November 18, 2022,
when Attorney General Merrick Garland exceeded his statutory and
constitutional authority by purporting to appoint Smith to serve as
Special Counsel for the Department of Justice (DOJ). Smith was
appointed “to conduct the ongoing investigation into whether any person
or entity [including former President Donald Trump] violated the law in
connection with efforts to interfere with the lawful transfer of power
following the 2020 presidential election or the certification of the
Electoral College vote held on or about January 6, 2021.” Off. of the Att’y
Gen., “Appointment of John L. Smith as Special Counsel,” Order No.
5559-2022 (Nov. 18, 2022). Attorney General Garland cited as statutory
2
authority for this appointment 28 U.S.C. 509, 510, 515, and 533. But
none of those statutes, nor any other statutory or constitutional
provisions, remotely authorized the appointment by the Attorney
General of a private citizen to receive extraordinary criminal law
enforcement power under the title of Special Counsel.
First, the Appointments Clause requires that all federal offices “not
otherwise provided for” in the Constitution must be “established by Law,”
U.S. Const. art. II, §2, cl. 2, and there is no statute establishing the Office
of Special Counsel in DOJ. The statutory provisions relied upon by DOJ
and lower courts for the appointment of Special Counsels over the past
half century do not authorize the creation and appointment of Special
Counsels at the level of United States Attorneys. And United States v.
Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no
question was ever raised in that case about the validity of the
independent counsel’s appointment. That case concerned the relationship
between the President and DOJ as an institution, not between the
President and any specific actor purportedly appointed by DOJ.
Second, even if one overlooks the absence of statutory authority for
the position, there is no statute specifically authorizing the Attorney
3
General, rather than the President by and with the advice and consent
of the Senate, to appoint such a Special Counsel. Under the
Appointments Clause, inferior officers can be appointed by department
heads only if Congress so directs by statute, see U.S. Const. art. II, §2, cl.
2, and so directs specifically enough to overcome a clear-statement
presumption in favor of presidential appointment and senatorial
confirmation. No such statute exists for the Special Counsel.
Third, the Special Counsel, if a valid officer, is a superior (or
principal) rather than inferior officer, and thus cannot be appointed by
any means other than presidential appointment and senatorial
confirmation regardless of what any statutes purport to say. This is true
as a matter of original meaning, and it is even true as a matter of case
law once one understands that neither Morrison v. Olson, 487 U.S. 654
(1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly
be read to say that any person who is in any fashion subordinate to
another executive official other than the President is an “inferior” officer.
Such a reading of those decisions leads to the ludicrous result that there
is only one noninferior officer in every executive department.
4
To be sure, there are times when the appointment of a Special
Counsel is appropriate. And statutes and the Constitution both provide
ample means for such appointments by allowing the use of existing
United States Attorneys. Any number of United States Attorneys have
performed with distinction the function of serving as a Special Counsel.
For example, on December 30, 2003, Patrick Fitzgerald, who was then
the U.S. Attorney for the Northern District of Illinois, was lawfully
appointed by the then-Acting Attorney General to investigate the Valerie
Plame leak affair, which arose within the jurisdiction of the District of
Columbia District Court. Mr. Fitzgerald, who was a Senate-confirmed
officer of the United States, prosecuted and secured the conviction of Vice
President Richard Cheney’s Chief of Staff, Scooter Libby, in the U.S.
District Court for the District of Columbia. Other recent examples
involve the Senate-confirmed U.S. Attorneys Rod Rosenstein, John
Huber, and John Durham. All of these investigations and prosecutions of
high-level wrongdoing were lawful.
What federal statutes and the Constitution do not allow, however,
is for the Attorney General to appoint a private citizen, who has never
been confirmed by the Senate, as a substitute United States Attorney
5
under the title “Special Counsel.” That is what happened on November
18, 2022. That appointment was unlawful, as are all the legal actions
that have flowed from it, including citizen Smith’s current prosecution of
Defendant.
ARGUMENT
I. No Statute Authorizes the Position of Special Counsel

Supposedly Held by Smith.
In our constitutional system, Congress alone has the authority to
create federal offices not established by the Constitution. And the
Attorney General cannot ex nihilo fashion offices as he sees fit. Nor has
Congress given the Attorney General power to appoint a Special Counsel
of this nature. Thus, without legally holding any office, Smith cannot
wield the authority of the United States, including his present attempt
to prosecute Defendant.
A. Only Congress Can Create a Federal Office.
The Constitution itself creates no executive positions other than the
presidency (and the vice presidency, if one considers it an executive
position). Instead, the Constitution commits the power to create federal
offices to Congress under the Necessary and Proper Clause, which gives
Congress power “[t]o make all Laws which shall be necessary and proper
6
for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in
any Department or Officer thereof.” U.S. Const. art. I, §8, cl. 18.
A law creating offices to carry out executive functions is the
quintessential law “necessary and proper for carrying into Execution”
federal powers. Moreover, “Congress has the exclusive constitutional
power to create federal offices.” Steven G. Calabresi & Gary Lawson, Why
Robert Mueller’s Appointment as Special Counsel Was Unlawful, 95
Notre Dame L. Rev. 87, 101 & n.74 (2019) (discussing 2 The Records of
the Federal Convention of 1787, at 550 (Max Farrand ed., 1911))
(“Mueller’s Appointment”); see also Seila Law LLC v. CFPB, 140 S.Ct.
2183, 2227 (2020) (Kagan, J., concurring in judgment with respect to
severability and dissenting in part). English monarchs could create
offices, but the Founders considered this power abusive and consciously
denied it to the President. See Steven G. Calabresi & Gary Lawson, The
U.S. Constitution: Creation, Reconstruction, the Progressives, and the
Modern Era 382 (1st ed. 2020). Accordingly, the Constitution does not
give the President or the heads of executive departments the power to
create any offices and to appoint any officers they deem appropriate.
7
Instead, it requires that Congress first create all offices to which federal
officers, superior or inferior, can be appointed.
This is confirmed by the Appointments Clause, which provides for
the appointment of officers “which shall be established by Law.” U.S.
Const. art. II, §2, cl. 2 (emphasis added). The addition of the emphasized
phrase in the Appointments Clause was deliberate. “On September 15,
1787, ‘[a]fter “Officers of the U.S. whose appointments are not otherwise
provided for,” were added the words “and which shall be established by
law.”’” Calabresi & Lawson, Mueller’s Appointment, supra, at 101 & n.77
(quoting 2 The Records of the Federal Convention of 1787, at 628). This
addition’s plain import is that the “law” that establishes the office must
be a statute; a regulation or executive (or judicial) order is not the kind
of “law” that can create an office under the Appointments Clause. See
Seila Law, 140 S.Ct. at 2227 (Kagan, J.) (quoting 1 Annals of Cong. 582
(1789) (Madison)). Indeed, the Constitution consistently uses the terms
“law” and “laws,” when otherwise unqualified, to mean statutes. See Gary
Lawson & Christopher D. Moore, The Executive Power of Constitutional
Interpretation, 81 Iowa L. Rev. 1267, 1315 (1996). If no statute
establishes an office, there is no office to which someone can be appointed.
8
B. The Organic Statutes of the Department of Justice Do

Not “By Law” Vest in the Attorney General of the
United States the Power to Appoint Officers with the
Power of Supposed Special Counsel Smith.
DOJ’s current structure, as provided by statute, includes an
Attorney General, Deputy Attorney General, Associate Attorney General,
Solicitor General, eleven Assistant Attorneys General, one U.S. Attorney
for each judicial district (currently ninety-four), a director of the Federal
Bureau of Investigation, a director of the U.S. Marshals Service, one U.S.
Marshal for each judicial district, a director of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, a director of the Bureau of Prisons,
twenty-one U.S. Trustees, and as many assistant United States
Attorneys and “special attorneys” as the Attorney General deems
necessary.
This list does not include more than 100,000 people who work at
DOJ. The vast majority of federal workers, including those who work at
DOJ, are not “officers of the United States.” They are employees, whose
appointments are not controlled by the Appointments Clause and who
therefore do not require specific statutory authorization. For their
appointments, it suffices to provide, as Congress has done, that “[e]ach
Executive agency, military department, and the government of the
9
District of Columbia may employ such number of employees of the various
classes recognized by chapter 51 of this title as Congress may appropriate
for from year to year.” 5 U.S.C. 3101 (emphasis added). But officer
positions must be specifically “established by Law.” U.S. Const. art. II,
§2, cl. 2. And employees cannot exercise the power of officers. See Lucia
v. SEC, 138 S.Ct. 2044, 2051–2052 (2018).
To be sure, the Ethics in Government Act of 1978, Pub. L. No. 95-
521, added to the mix an “independent counsel” appointed by a special
three-judge court upon referral by the Attorney General. But the
statutory provisions for the independent counsel expired in 1999 when
Congress failed to reauthorize them.
Shortly before that expiration, then-Attorney General Janet Reno
promulgated regulations—which, if valid, are still in force today—
providing for an “Office of Special Counsel.” See Office of Special Counsel,
64 Fed. Reg. 37,038 (July 9, 1999) (codified at 28 C.F.R. 600.1–600.10)
[hereinafter “Reno Regulations”]. Under these regulations, the Attorney
General may, in some circumstances, “appoint an outside Special Counsel
to assume responsibility for the matter.” 28 C.F.R. 600.1 (emphasis
added). The regulations clarify that “outside” counsel means someone
10
“from outside the United States Government.” Id. 600.3(a). The Reno
Regulations, like the independent counsel statute, contemplate
appointment, as a putative inferior officer, of a nongovernmental official
to an office that is fully the equivalent of a United States Attorney. But
regulations are not the kind of “law” that can “establish[]” a federal office.
Only a statute can do that under the Appointments Clause, and no
statute creates a Special Counsel with the jurisdiction and authority
Smith wields.
The Reno Regulations cite as authority 5 U.S.C. 301 and 28 U.S.C.
509, 510, 515–519. In his order appointing Smith, Attorney General
Garland cited “28 U.S.C. §§ 509, 510, 515, and 533.” Order No. 5559-2022
at 1. These statutes, singly or collectively, plainly provide no such
authority.
1. Start with 5 U.S.C. 301. This provision is a general
authorization for the issuance of regulations by the Attorney General or
any other department head:
The head of an Executive department or military department

may prescribe regulations for the government of his
department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and
preservation of its records, papers, and property ***.
11
This is merely a general housekeeping provision. Nothing in it creates
any offices or authorizes the creation (or abolition) of any offices. Indeed,
if §301 were taken as general authorization for appointment of officers,
the entirety of the more numerous specific provisions for appointment of
officers throughout the United States Code would be superfluous. That is
an absurd construction of §301, and no one seriously advances it.
2. Next, §509 of Title 28 merely says that “[a]ll functions of other
officers of the Department of Justice and all functions of agencies and
employees of the Department of Justice are vested in the Attorney
General,” except for some functions not relevant here. But this provision
likewise does not authorize the creation of any office. It simply says that
the Attorney General can control all his subordinates in DOJ or
personally assume and exercise their responsibilities.
3. Similarly, §510 merely says: “The Attorney General may from
time to time make such provisions as he considers appropriate
authorizing the performance by any other officer, employee, or agency of
the Department of Justice of any function of the Attorney General.” As
with §509, the statute provides for shifting authority among the persons
12
who work at DOJ, but it says nothing about who those persons are or how
they got there.
4. Attorney General Garland also cited 28 U.S.C. 515, and the
Reno Regulations relied on 28 U.S.C. 515–519. Again, alone or singly,
none of these provisions comes close to authorizing the creation of a
Special Counsel or the appointment by the Attorney General of a private
citizen to the position.
First, §515(a) confers only the following power:
The Attorney General or any other officer of the Department

of Justice, or any attorney specially appointed by the Attorney
General under law, may, when specifically directed by the
Attorney General, conduct any kind of legal proceeding, civil
or criminal, including grand jury proceedings and proceedings
before committing magistrate judges, which United States
Attorneys are authorized by law to conduct, whether or not he
is a resident of the district in which the proceeding is brought.
Thus, §515(a) does not create any offices or authorize their creation.
Instead, it concerns the powers of people who have been properly
appointed to offices “under law” pursuant to other statutory provisions,
and it allows the Attorney General to designate a U.S. Attorney or a
special attorney appointed “under law” to prosecute a case “whether or
not he is a resident of the district in which the proceeding is brought.”
Ibid.
13
Section 515(a) is thus a geographical and jurisdictional allocative
provision, not a grant of power to appoint private citizens as Special
Counsels. For example, in 2003, this clause allowed the Attorney General
to appoint Patrick Fitzgerald, the Senate-confirmed U.S. Attorney for the
Northern District of Illinois, to take on Special Counsel duties to
investigate the Valerie Plame affair, which arose in the District of
Columbia. Section 515(a) permits this geographical flexibility.
Second, §515 adds in subsection (b):
Each Attorney specially retained under authority of the

Department of Justice shall be commissioned as special
assistant to the Attorney General or special attorney, and
shall take the oath required by law. Foreign counsel employed
in special cases are not required to take the oath. The
Attorney General shall fix the annual salary of a special
assistant or special attorney.
Again, this subsection is not a grant of a new power to retain or to hire
new officers, but instead provides on its face that attorneys who have
already been hired or retained, and who may be only employees, not
officers, can also have a title and salary.
To be sure, §§515(a) and 515(b) both assume that there are going to
be attorneys “specially appointed by the Attorney General under law”
and “specially retained under the authority of the Department of
14
Justice.” And indeed, an explicit provision elsewhere in Title 28, §543
(discussed below), authorizes the Attorney General to hire such persons,
who can then be denominated and commissioned as “special assistant[s]”
or “special attorney[s]” under §515(b). But these provisions confer no
authority to create offices.
Likewise, §§516–519 concern the internal allocation of authority
among existing DOJ personnel and provide no authority to create offices.
Section 519, for example, provides:
Except as otherwise authorized by law, the Attorney General

shall supervise all litigation to which the United States, an
agency, or officer thereof is a party, and shall direct all United
States Attorneys, assistant United States Attorneys, and
special attorneys appointed under section 543 of this title in
the discharge of their respective duties.
There is no office-creating power here, either.
5. Section 519, however, points to the correct answer regarding
the Attorney General’s statutory authority to appoint Special Counsels.
Section 519 notes that there are “special attorneys appointed under
section 543 of this title.” Indeed, there are. Section 543 of Title 28 is
explicit authority for the Attorney General to appoint Special Counsels.
Yet neither the Reno Regulations nor the Garland memo appointing
Smith makes any mention of this provision. Why not? Because §543 does
15
not authorize the kind of Special Counsel contemplated by the Reno
Regulations or the Garland appointment of Smith. Section 543 is
narrowly cabined, as one would expect from the overall structure of Title
28. The government for decades has steadfastly refused to rely on this
provision that explicitly provides the Attorney General with hiring
authority, and it continues to refuse to rely on it in current litigation—
for the obvious reason that the provision contains internal limitations
which the government seeks to avoid.
This is clear from the text of §543, which provides:
(a) The Attorney General may appoint attorneys to assist

United States attorneys when the public interest so requires,
including the appointment of qualified tribal prosecutors and
other qualified attorneys to assist in prosecuting Federal
offenses committed in Indian country.
(b) Each attorney appointed under this section is subject to

removal by the Attorney General.
This is an obvious and explicit authorization for the creation and
appointment of “special assistants” or “special counsels” who merely
assist U.S. Attorneys when the public interest so requires.
There are, moreover, many contexts in which the appointment of
such persons makes sense. The government often encounters problems
for which private lawyers have expertise—either gained from past
16
government service or private experience—on matters such as organized
crime, banking, antitrust, tribal law, and so forth. Those lawyers may not
want a permanent government position but may be willing to help the
government on a limited basis, perhaps as part of a task force or a team
dealing with a specific piece of complex litigation requiring expert
knowledge. An appointment as a special assistant or special counsel,
under the control and direction of a United States Attorney, is an obvious
win-win in such instances.
The problem for the government in the case of the Reno Regulations
and the Smith appointment is that those Regulations and the Smith
appointment order do not contemplate “special counsels” who assist U.S.
Attorneys. Instead, they contemplate Special Counsels who replace U.S.
Attorneys in specific cases. Smith, for example, was not appointed to
assist U.S. Attorneys. He was hired as a powerful standalone officer who
replaces rather than assists the functions of United States Attorneys
within the scope of his jurisdiction. This is precisely the role that the
Ethics in Government Act authorized for independent counsels. But that
statute no longer exists, and in the absence of that statute or a similar
17
one, there is simply no statutory office of Special Counsel to which Smith
could be appointed to function as a stand-in for a U.S. Attorney.
6. The remainder of Title 28 confirms this conclusion. Section
533, relied upon by Attorney General Garland, is part of a chapter
dealing with the FBI and is entitled “Investigative and Other Officials.”
It says:
The Attorney General may appoint officials-(1) to detect and

prosecute crimes against the United States; (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 the control of the Department of Justice and the
Department of State as may be directed by the Attorney
General.
But §533(1) is not a general authorization to the Attorney General to
appoint officers. It specifically and solely authorizes the appointment of
“Investigative and Other Officials”—officials, not officers—connected
with the FBI. This does not include Special Counsels. This is clear for
three reasons.
First, §533 is part of Chapter 33 of Title 28, encompassing §§531–
540D, which deals with the “Federal Bureau of Investigation.” Section
532, immediately preceding §533, is entitled “Director of the Federal
Bureau of Investigation,” and spells out the Attorney General’s authority
18
over the FBI. Section 534, immediately following §533, concerns
preserving evidence in criminal cases.
Section 533 thus clearly deals with FBI officials and agents, not
Special Counsels. This is how the government has long understood this
provision, which has been employed as the basis for the FBI’s law
enforcement authority.
Second, §533 concerns the appointment of investigative and
prosecutorial “officials.” Such officials, as that term is used in the
statute,2 are not Article II “officers of the United States” and cannot
perform the functions of officers of the United States. They are nonofficer
employees, who, as FBI agents, must be subject to the supervision and
direction of officers of the United States. The FBI needs office and field
personnel to perform its functions, and §533 allows the agency to have
them. But those office and field personnel are not officers of the United
States and do not have the range and power of a Special Counsel.
2 An eighteenth-century statute might have used a term such as

“officials” to have a broader meaning than applies to §533. See Lucia, 138
S.Ct. at 2056–2057 (Thomas, J., concurring). As a matter of statutory
interpretation, however, there is no plausible case for reading the term
as it appears in §533 to be coextensive with the constitutional meaning
of “officer.”
19
To the contrary, the word “Officer” is a constitutional term of art,
not only because it is used that way in the Appointments Clause, but also
because Article II, Section 4 allows for the impeachment and removal
from office of “all civil Officers of the United States[.]” Congress can try
to impeach the Deputy Attorney General or the FBI Director, but no one
thinks Congress can impeach DOJ trial attorneys, Office of Legal
Counsel attorney-advisers, or field personnel at the FBI. What is more,
officers can be put by Congress in the line of succession to the presidency.
See U.S. Const. art. II, §1, cl. 6. But no one thinks investigative officials
at the FBI or DOJ trial attorneys, who are bureaucrats and employees,
can be put in the line of succession to the presidency. That simply is not
how Congress was using the term “officials” in §533.
Third, and perhaps most tellingly, a cavalier reading of §533 to
authorize hiring beyond its obvious scope obliterates the careful
structure of Title 28. That Title is divided into chapters dealing with the
Attorney General; the FBI; U.S. Attorneys; the Marshals Service; U.S.
Trustees; the Bureau of Alcohol, Tobacco, Firearms and Explosives; and
the now-sunsetted independent counsel. Wide-ranging Special Counsels
20
of the sort represented by Smith are not part of these provisions outside
of the now-defunct Ethics in Government Act sections.
7. At a more granular level, the effect of a loose reading of the
statutes is even more bizarre. Congress, as noted earlier, has provided
for the appointment, all with presidential nomination and senatorial
consent, of a Deputy Attorney General, an Associate Attorney General, a
Solicitor General, exactly eleven Assistant Attorneys General (plus an
Assistant Attorney General for Administration who is in the competitive
service and is appointed by the Attorney General), and exactly one U.S.
Attorney for each judicial district, of which there are currently ninety-
four. A reading of §533 to create essentially unlimited inferior officer
appointment power in the Attorney General wreaks havoc on this
structure. It would allow the Attorney General to appoint an entire
shadow DOJ to replace the functions of every statutorily specified officer.
No wonder the Reno Regulations did not invoke it.
For reasons described in depth in Calabresi & Lawson, Mueller’s
Appointment, supra, the Supreme Court in United States v. Nixon, 418
U.S. 683 (1974), did not pass on the scope of §533. That decision contains
some ill-considered dictum regarding §533, see Nixon, 418 U.S. at 694–
21
695, but it merits no weight. Anyone tempted to rely on Nixon should
read the case briefs to see what issues were truly raised there. Those
issues involved only the relationship between the President and DOJ as
an institution; the same arguments would have been raised if the
Attorney General personally, rather than the independent counsel, had
brought the suit at issue there. See Calabresi & Lawson, Mueller’s
Appointment, supra, at 120–123. Moreover, Nixon was argued and
decided before the modern rebirth of separation of powers, which dates
from two years after Nixon in Buckley v. Valeo¸ 424 U.S. 1 (1976) (per
curiam).
In short, the position supposedly held by Smith was not
“established by Law.” The authority exercised by him as a so-called
“Special Counsel” far exceeds the power exercisable by a mere employee.
See Lucia, 138 S.Ct. at 2051–2052. He is acting as an officer, but aside
from the specific offices listed in the statutes discussed above, there is no
office for him to hold. That alone robs him of authority to represent the
United States in any capacity, including before this Court.
22
II. The Appointments Clause Establishes a Default Rule that

All Heads of Departments, Principal Officers, and Superior
Officers Require Presidential Nomination, Senate
Confirmation, and then Presidential Appointment.
Even if one somehow thinks that existing statutes authorize
appointment of stand-alone Special Counsels with the full power of a U.S.
Attorney, Smith was not properly appointed to such an “office.” No
statute clearly authorized his appointment by any mode other than
presidential appointment and Senate confirmation.
Any such statute, of course, is governed by the Appointments
Clause of Article II, Section 2, which provides that the President “shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the
Supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments.”
This sentence makes three things clear. First, the default mode of
appointment for all officers, whether superior or inferior, is presidential
nomination, Senate confirmation, and then presidential appointment.
Second, this default presumption can only be overridden by Congress in
23
the case of inferior officers. Third, even in case of inferior officers,
Congress must speak clearly to authorize a permissible mode of
appointment for those officers other than presidential nomination,
Senate confirmation, and presidential appointment.
This latter “clear statement” rule is implicit in the Appointments
Clause and the constitutional structure. That Clause is both a separation
of powers and a federalism provision. It divides appointment power
between the President and the Senate—not between the President and
Congress as a whole—which lacks power to confirm appointees. See
Buckley, 424 U.S. at 127. The Senate is the body in which States receives
equal representation, whatever their size or population, which guards
against large-state Presidents underrepresenting smaller states in the
executive and judicial departments. As one Convention participant put
it, presidential appointment power without the check of the Senate would
allow presidents “to gain over the larger States, by gratifying them with
a preference of their Citizens.” 2 Records of the Federal Convention at 43
(Mr. Bedford). These structural concerns warrant an interpretative
presumption in favor of a clear statement of congressional intent to
authorize appointment of an inferior officer by any means other than
24
presidential nomination and senatorial confirmation. Cf. Biden v.
Nebraska, 143 S.Ct. 2355, 2372–2375 (2023) (invoking the major
questions doctrine because “the Executive seiz[ed] the power of the
Legislature”); Gregory v. Ashcroft, 501 U.S. 452, 460–461 (1991)
(articulating federalism clear statement rule).
Even without such a presumption, ordinary statutory
interpretation demonstrates that the Attorney General received no
power to appoint Special Counsels as inferior officers. None of the
statutes canvassed in the previous section contains any such
authorization. In contrast to the DOJ’s organic statute, the organic
statutes of the Agriculture, Education, Health and Human Services, and
Transportation Departments do contain inferior officer appointment
power clauses. Thus, the Agriculture Secretary “may appoint such
officers and employees *** and such experts, as are necessary to execute
the functions vested in him[,]” 7 U.S.C. 610(a); the Education Secretary
similarly “is authorized to appoint *** such officers and employees,
including attorneys, as may be necessary to carry out the functions of the
Secretary and the Department[,]” 20 U.S.C. 3461; the Health and Human
Services Secretary “is authorized to appoint *** officers and employees,”
25
42 U.S.C. 913; and the Transportation Secretary “may appoint ***
officers and employees of the Department of Transportation ***.” 49
U.S.C. 323(a). And Congress gave the Attorney General power to
“appoint such additional officers and employees as he deems necessary[,]”
18 U.S.C. 4041—but specifically for the Bureau of Prisons, not more
broadly for other DOJ components.
It is unclear why Congress chose to give general inferior officer
appointment power to the aforementioned Secretaries but not the
Attorney General. It may be because of the unique threat that an
unprincipled Attorney General could pose to civil liberties, the separation
of powers, and federalism. But this Court need not divine Congress’s
reasons for making different policy choices because the relevant statutes
are unambiguous.
III. Even If Special Counsels Were Statutorily Authorized, They

Would Be Superior Officers Who Would Need Presidential
Nomination and Senate Confirmation.
If Smith actually had the power to convene grand juries, issue
subpoenas, direct and conduct prosecutions, and file appeals in this Court
(let alone the Supreme Court), he would obviously be an “Officer of the
United States” rather than a mere employee. See Lucia, 138 S.Ct. at
26
2051–2052; Buckley, 424 U.S. at 139–140; Calabresi & Lawson, Mueller’s
Appointment, supra, at 128–134. More than that, he would be a superior
(or principal) officer. And by the plain terms of the Appointments Clause,
superior officers must be appointed by the President with the Senate’s
advice and consent. That is not how Smith was appointed, and he thus
could not serve as Special Counsel even if such a position validly existed.
The Special Counsels contemplated by the Reno Regulations are
the equivalent of, if not more powerful than, U.S. Attorneys. It is obvious
as an original matter that U.S. Attorneys are superior officers, see
Calabresi & Lawson, Mueller’s Appointment, supra, at 138–142, and the
same is true of the Special Counsels who mirror them. The only plausible
argument to the contrary rests not on original meaning but on a wild
overreading of the Supreme Court’s decisions in Morrison v. Olson, 487
U.S. 654 (1988), and Edmond v. United States, 520 U.S. 651 (1997).
Those decisions, especially Edmond, contain language that some lower
courts have read to mean that anyone who had a superior on an agency
organization chart must be an “inferior” officer. But if that were true, the
Solicitor General, the Associate Attorney General, all the Assistant
Attorneys General, all U.S. Attorneys, and even the Deputy Attorney
27
General, would be inferior officers, because they all answer at some level
to the Attorney General. Likewise, judges of the federal courts of appeals
and district courts would be inferior officers because they can be
overruled by the Supreme Court. Could Congress therefore let the
Attorney General appoint court of appeals judges or the Solicitor General
or FBI Director? Of course not.
One can be a superior rather than inferior officer in two ways. One
is to have no decisional superior other than the President. Smith’s court
filings insist that he is independent from his nominal superior (the
Attorney General), and even the President, assuring the courts that
“coordination with the Biden Administration”—which includes Attorney
General Garland and President Biden—is “non-existent.” Gov’t Mot. in
Limine at 6, United States v. Trump, No. 1:23-cr-257-TSC (D.D.C.).
Smith thus has no functional superior, necessarily rendering him a
superior officer. And this lack of accountability only compounds the
invalidity of his purported appointment. See Seila Law, 140 S.Ct. at
2197–2199.
The other way to be a superior officer is to have so much power and
authority that one is superior in a substantive sense. For example, in the
28
late eighteenth century, a court whose decisions were not subject to
review by any other court could nonetheless sometimes be called an
“inferior” court if its jurisdiction or geographic scope was not as extensive
as those of other courts. See David E. Engdahl, What’s in a Name? The
Constitutionality of Multiple “Supreme” Courts, 66 Ind. L.J. 457, 466–472
(1991). That is why an early draft of Article III at the Constitutional
Convention proposed creating “one or more supreme tribunals.” Id. at
464. “Inferior” does not exclusively mean “subject to control, direction,
and review.” It means that much, but it can also mean more in certain
contexts.
As Justice Souter perceptively wrote in his Edmond concurrence:
“Because the term ‘inferior officer’ implies an official superior, one who
has no superior is not an inferior officer ***. It does not follow, however,
that if one is subject to some supervision and control, one is an inferior
officer. Having a superior officer is necessary for inferior officer status,
but not sufficient to establish it.” 520 U.S. at 667 (Souter, J., concurring
in part and concurring in the judgment).
Either way, if he is an officer, Smith is a superior officer. He has no
superior supervising or directing him as required by Edmond or Free
29
Enterprise Fund v. Public Company Accounting Oversight Board, 561
U.S. 477 (2010). Attorney General Garland does not supervise or direct
him, as he said he would not when Smith was appointed Special Counsel.
And Smith is appearing in this Court on behalf of the United States.
He is prosecuting a former President, the first time that has happened in
our Nation’s history. Smith is purporting to exercise at least as much
power as a U.S. Attorney, and arguably more. That is the hallmark of a
superior officer, who must be appointed as such.
The absence of such an appointment means that Smith lacks
authority to prosecute Defendant on behalf of the United States. And
that is a powerful, sufficient reason to vacate the decision below and
order that Smith’s prosecution of Defendant be dismissed.
IV. This Panel is Not Bound by Contrary Circuit Precedent

because Seila Law is Supervening Authority, and This Issue
May be Reached Sua Sponte on Appeal.
On the issue of Smith’s authority, moreover, this panel is not bound
by In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019), which
held that private citizens can be appointed as Special Counsels consistent
with the Appointments Clause. Id. at 1052–1054. Following that
decision, the Supreme Court further explained the Appointments
30
Clause’s requirements, including an observation that restrictions on the
removability of appointed officers have been upheld only under two
narrow exceptions, not relevant here. See Seila Law, 140 S.Ct. at 2199–
2202. Moreover, Seila Law expounded the problems with the
Constitution’s separation of powers entailed by the CFPB Director. See
id. at 2202–07. Like the Director there, the Framers’ determination to
“divide power everywhere except for the Presidency,” id. at 2203, renders
the Special Counsel’s purported “insulation from removal ***
unconstitutional,” id. at 2204.
Thus, Seila Law constitutes supervening authority between Grand
Jury and now. The law-of-the-circuit doctrine does not require continued
adherence to a panel decision inconsistent with subsequent Supreme
Court precedent. See Maxwell v. Snow, 409 F.3d 353, 358 (D.C. Cir. 2005).
At minimum, this issue warrants polling the full Court as a substitute
for an en banc determination. See Irons v. Diamond, 670 F.2d 265, 268
n.11 (D.C. Cir. 1981) (explaining this procedure); Nat’l Env’t Dev. Ass’ns
Clean Air Project v. EPA, 891 F.3d 1041, 1052 n.* (D.C. Cir. 2018)
(following this procedure).
31
Furthermore, this Court may reach this issue now. That is because
the Supreme Court has “expressly included Appointments Clause
objections *** in the category of nonjurisdictional structural
constitutional objections that could be considered on appeal whether or
not they were ruled upon below.” Freytag v. Comm’r, 501 U.S. 868, 878–
879 (1991) (collecting cases). See also Dynaquest Corp. v. USPS, 242 F.3d
1070, 1076 (D.C. Cir. 2001) (“[C]ourts have discretion to consider
Appointments Clause challenges raised for the first time on appeal.”).
Judicial economy also points towards this Court deciding the
Appointments Clause issue now, as otherwise Defendant will simply
raise it before the District Court if the case is remanded and this Court
will face the issue again on appeal. This panel is accordingly free to
invalidate Smith’s appointment, and should do so.
CONCLUSION
Not properly clothed in the authority of the federal government,
Smith is a modern example of the naked emperor. Illegally appointed, he
has no more authority to represent the United States in this Court, or in
the underlying prosecution, than Tom Brady, Warren Buffett, or
Beyoncé. That fact is sufficient to sink Smith’s prosecution of Defendant,
32
and the Court should vacate the decision below and order that the
prosecution be dismissed. We express no views on the substantive issues
addressed in the parties’ briefs.
Respectfully submitted,
/s/ Gene C. Schaerr

GENE C. SCHAERR
Counsel of Record
JUSTIN A. MILLER*
AARON C. WARD*
SCHAERR | JAFFE LLP
(202) 787-1060
[email protected]
Counsel for Amici Curiae

Former Attorney General Edwin Meese
III and law professors Steven G.
Calabresi and Gary S. Lawson
* Not yet admitted in D.C. Practicing

under the supervision of D.C. bar
members.
Date: December 30, 2023
33
CERTIFICATE OF COMPLIANCE
I certify, on this 30th day of December 2023, that the foregoing Brief
for Amici Curiae complies with the word limit under Fed. R. App. P.
29(a)(5) and this Court’s briefing order because, excluding the parts of
the document exempted by Fed. R. App. P. 32(f), this document contains
6,497 words. The number of words was determined through the word-
count function of Microsoft Word. This document complies with the
typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style
requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in
a proportionally spaced typeface using Microsoft Word in 14-point
Century Schoolbook font.
/s/Gene C. Schaerr
GENE C. SCHAERR
34
CERTIFICATE OF SERVICE
I certify that on December 30, 2023, I caused the foregoing Brief for
Amici Curiae to be filed with the Clerk of this Court by using the
appellate CM/ECF system. The participants in the case are registered
CM/ECF users and service will be accomplished by the appellate
CM/ECF system.
/s/Gene C. Schaerr
GENE C. SCHAERR
35

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USCA Case #23-3228 Document #2033813 Filed: 12/30/2023 Page 1 of 44

ORAL ARGUMENT SET FOR JANUARY 9, 2024

United States Court of Appeals

BRIEF OF FORMER ATTORNEY GENERAL EDWIN MEESE III

CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW,

professors Steven G. Calabresi and Gary S. Lawson certify as follows:

A. Parties and Amici

in the Briefs for Plaintiff-Appellee and Defendant-Appellant. In addition

was finalized for filing: Bradford A. Berenson, Gregory A. Brower, Tom

Campbell, Ty Cobb, Tom Coleman, George T. Conway III, John J. Farmer

Jr., Patrick J. Fitzgerald, William Kristol, Philip Allen Lacovara, John

McKay, Trevor Potter, Claudine Schneider, Fern M. Smith, Olivia Troye,

William F. Weld, and American Oversight.

B. Rulings Under Review

References to the rulings at issue appear in the Briefs for Plaintiff-

Appellee and Defendant-Appellant.

References to related cases appear in the Briefs for the Plaintiff-

Appellee and Defendant-Appellant.

/s/ Gene C. Schaerr

CORPORATE DISCLOSURE STATEMENT

natural persons, and as such have no parent corporations or stock.

/s/ Gene C. Schaerr

STATEMENT PURSUANT TO D.C. CIRCUIT RULE 29(d)

A separate brief is necessary for the presentation to this Court of

present amici’s distinctive views of the ultra vires appointment of Special

unlike other amici in this case, it is not possible to consolidate amicus

CERTIFICATE AS TO PARTIES, RULINGS UNDER REVIEW,

CERTIFICATE OF COMPLIANCE ........................................................ 34

28 U.S.C. 543 ........................................................................................... 23

STATEMENT OF IDENTITY, INTEREST IN CASE, AND

addresses is particularly important to amici. The Honorable Edwin

Meese III served as the seventy-fifth Attorney General of the United

Ronald Reagan Distinguished Fellow Emeritus at the Heritage

Foundation. During his tenure as Attorney General, the Department of

Justice steadfastly defended proper limits on federal power. Professors

(D.C. Cir. 2007) (Rogers, J., concurring) (citing Lawson).

order dismissal of Defendant’s prosecution for failure of prosecutorial

Jack Smith does not have authority to conduct the underlying

prosecution. Those actions can be taken only by persons properly

appointed as federal officers to properly created federal offices. Neither

Smith nor the position of Special Counsel under which he purportedly

rule of law—whatever one may think of the Defendant or the conduct at

issue in the underlying prosecution.

The illegality addressed in this brief started on November 18, 2022,

when Attorney General Merrick Garland exceeded his statutory and

constitutional authority by purporting to appoint Smith to serve as

Special Counsel for the Department of Justice (DOJ). Smith was

or entity [including former President Donald Trump] violated the law in

connection with efforts to interfere with the lawful transfer of power

following the 2020 presidential election or the certification of the

Gen., “Appointment of John L. Smith as Special Counsel,” Order No.

5559-2022 (Nov. 18, 2022). Attorney General Garland cited as statutory

none of those statutes, nor any other statutory or constitutional

provisions, remotely authorized the appointment by the Attorney

General of a private citizen to receive extraordinary criminal law

enforcement power under the title of Special Counsel.

otherwise provided for” in the Constitution must be “established by Law,”

of Special Counsel in DOJ. The statutory provisions relied upon by DOJ

half century do not authorize the creation and appointment of Special