Taking Justice Thomas's bait from the Trump v. US opinions (https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf, page 52), it would appear.
Absent that, the only other way to appoint someone is to get senate confirmation via the appointments clause. The president didn't seek this confirmation for the special prosecutor.
This is a very important check on the president's power.
The current president basically hired a private attorney without authorization and sic'd him on his political enemy.
EDIT: Those of you downvoting - why are you against the rule of law? The law on this is very clear, and this issue about this special prosecutor has been known for years.
https://en.wikipedia.org/wiki/Durham_special_counsel_investi...
There's a reason Thomas's concurrence is separate from the majority opinion; even the other five conservative justices didn't support the theory.
Besides which, a litigant would need to raise this issue in court for it to be litigated.
If this particular issue does come before SCOTUS, then we'll see how the justices rule.
We got a pretty decent preview. Thomas's concurrence pretty clearly indicates he tried to get them to sign on to the concept during deliberation; its separate existence also indicates he was unsuccessful at convincing them.
I don't see much in https://en.wikipedia.org/wiki/Special_counsel#Current_regula... that supports your claim that this has been adjudicated any time recently. Care to highlight a case?
You wrongly assume the only reason they didn’t concur with Thomas’ arguments is because they think they are incorrect. There is another possible explanation: whatever they may think of Thomas’ arguments, they may have thought it better to leave discussion of that issue out of the majority opinion, given it wasn’t part of the questions presented for them to decide in the immediate case, and it wasn’t fully ventilated in the briefs and arguments and the record below. It isn’t impossible, despite not joining him in his concurrence, some or all of them might end up agreeing with him if they were presented with a case directly on that topic (which may indeed now happen)
Does the AG need Congressional approval every time he hires a secretary?
There are two sets of principles of the rule of law in conflict [1]. On one hand, you are correct in Cannon’s argument being supported by “consistency (no contradictory laws)” and the “protection of individual rights.” But in throwing out precedent she discards “consistency (no contradictory laws)” and “certainty (certainty of application for a given situation).”
Where the balance tips for me is in her violating the most core tenet of the rule of law, that no man is above the law, something she has been dinged for in the past [2].
[1] https://en.m.wikipedia.org/wiki/Rule_of_law
[2] https://s3.documentcloud.org/documents/23323385/trump-ca11-2...
That is not what is going on here.
An attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ. It hasn't been authorized by any law.
What powers does a Special Counsel have that any DoJ prosecutor doesn’t that injure the defendant?
The defining characteristic of a special prosecutor is they can’t be fired—that injures the President and AG.
Cool, then ding him. Presidential authority is absolutely uncomfortably vague. But this expands it; Cannon is saying, in essence, a prosecutor who the President can order around should be bringing this case.
Right now, Biden is above the law. He could declare martial law in D.C., field promote his son and then—as commander in chief—order him to execute the conservative members of the Supreme Court, pardon his son, pardon himself, resign and—under current law—be absolutely immune. Under current law, the President is more powerful than Rome’s consuls ever were [1].
[1] https://en.m.wikipedia.org/wiki/Senatus_consultum_ultimum
Not as I understand the Supreme Court decision. Ordering the execution of 6 members of the Supreme Court is not within the scope of his office. You'd have to prove it - there's a presumption that his actions are within scope - but it's not absolute. (For stuff that is within the scope of the powers of his office, there is absolute immunity.)
Commander in Chief is a core Constitutional duty, and one of the most-expansively interpreted ones at that.
Of course, if someone did that the rules wouldn’t matter. And they wouldn’t follow up by resigning. But it’s illustrative of how silly the framework is.
Ordering the killing of Supreme Court justices is not part of the powers of the Commander in Chief!
And the fact that people are acting like it could be is evidence of how silly the discussion about the framework has gotten.
We’ve extrajudicially liquidated Americans overseas before. Why isn’t this a power of the Commander in Chief?
What if they aren’t SCOTUS, but federal judges suspected of a terrorist plot? State judge? Where do we draw the line? (We’ve executed Americans extrajudicially and under Article I powers.)
> that people are acting like it could be
Nobody is. I’m not arguing that absurdity is a likelihood that can be defended against with laws. My point is there is no good source for what constitutes an official act.
EDIT: You are arguing in good faith and shouldn’t be getting downvoted.
Was this an official act? The President of the United States ordered the military to kill an American citizen who had not been convicted of a crime, with the "due process" being a DOJ memo.
What would make a hit on SCOTUS any different? Both involve the President ordering the armed forces in his official capacity as Commander in Chief to kill an American citizen without trial.
The only difference would be motive, and the Trump v. United States opinion explicitly states courts cannot consider it!
Show me one instance of the president ordering a hit on a citizen within the US borders. For that matter, show me one instance of the president ordering it within a country that would extradite to the US.
OK, so he can drone strike SCOTUS if they go on vacation overseas?
> The ability to arrest them rather than hit them.
Well, it's pretty clear he can't arrest them. That wouldn't be an official act like issuing an order to the military would be.
> Show me one instance of the president ordering a hit on a citizen within the US borders.
The ruling granting absolute immunity without consideration to motives is brand new and the first and only person so far to be subject to it is a decent human being. The system needs to protect us against more than just the well-intended.
So, back to the main point: The ruling did not grant absolute immunity for acts outside the scope of his office. (Really! Read it! Take what it says about itself, not Sotomayor's hyperventilating dissent[1]. The ruling says the scope of what it does and does not cover.)
And, second point: Ordering the execution of 6 sitting Supreme Court justices is not within the scope of the president's office. For all you keep raising Awlaki, it's not at all the same - not unless 1) a bunch of SC judges became Al-Qaeda organizers, and 2) the Justice Department, the FBI, the Marshalls Service, and the local police were completely unable to arrest them.
[1] "Hyperventilating" because it had lots of rhetoric but very little actual legal analysis.
Commanding the armed forces is very much in his scope. Remember, the same decision said motives couldn't be considered in determining official vs. non-official act; the difference between "Trump is a national security threat the judicial system clearly can't handle" and "al-Awlaki is a national security threat the judicial system clearly can't handle" is the President's motive behind the strike.
> it's not at all the same - not unless 1) a bunch of SC judges became Al-Qaeda organizers...
Can you clarify where in the Constitution it says it's OK to assassinate some Americans without a trial but not others?
> The point is that the normal judicial process can work on them.
I mean, maybe? Not long after news broke of Thomas accepting $4M+ in gifts, Snyder vs. United States said gratuities after an act don't count as bribes.
Commanding the armed forces against other branches of the United States government is very much not in the scope of his office.
"Commanding the armed forces" is not the unlimited blank check that you seem to think it is. Since Vietnam, it's drilled into the heads of the military not to accept an illegal order. Inherent in that is the idea that some orders are illegal. They are not legitimate things to ask the military to do. Well, if they're not legitimate to ask, then they can't be within the scope of the commander-in-chief's legitimate authority. And I'm pretty sure that killing Supreme Court justices would be on the "not legitimate" side of the line.
Why not? Where is this restriction laid out in the Constitution? The Presidential Oath of Office even says he'll defend the Constitution "against all enemies, foreign and domestic". As we've discussed, precedent for "enemy" seems to be "DOJ writes themselves a permission slip".
Absurd setup? Yes. That's precisely why folks are incensed about this ruling.
We fought and won a civil war. Lincoln was well within his rights the whole time. Based on that, firing upon leaders of traitorous states is precedented.
> it's drilled into the heads of the military not to accept an illegal order
Absolute immunity toys with that restraint. The President, if absolutely immune, is tactically sovereign. Add to that pardon power and this blurs the line between what constitutes a legal, executable order and one that does not. (We’re no saints when it comes to international law, incorporated or not.)
We’re not in a scary place. The levers of tyranny have always been there. We’re in a stupid place. That makes more likely not calculated coup but idiotic dishevelment.
Nobody is suggesting this is realistic. If you’re going to do what I described, you go all the way and hold the Congress at gunpoint. (That’s been a risk we’ve trusted in the Presidency since at least the New Deal, and nobody in power seems unhappy about it.) What we’re asking is whether it would be legal.
Arguing ad absurdum has a long tradition in law. Usually it’s constrained to academia by the “cases and controversies” clause, but SCOTUS is no longer narrowly deciding cases. (“Decision for the ages” and the Warren court.) It’s used to uncover internal inconsistency.
(Also, “FUD” isn’t an argument.)
There is a legal distinction between an “officer of the United States” and an “employee of the United States”. An officer has the power to make significant legally binding decisions in the name of the United States government. A secretary is an employee: nobody is arguing the Attorney-General needs specific authorisation from Congress to hire a secretary (assuming their salary fits within the appropriated personnel budget, etc). But a special counsel is clearly not a mere employee, a special counsel is an officer - deciding to initiate and advance a federal criminal prosecution is a significant legal decision. Hence, the argument is that the special counsel, as an officer, needs to be authorised by Congress, either by statute, or as a Senate-confirmed appointment. Whether or not that argument is correct, the example you raise of hiring a secretary is irrelevant to it.
There's another legal distinction, though; "principal" and "inferior" officers.
https://www.law.cornell.edu/constitution-conan/article-2/sec...
Unfortunately, the Founding Fathers never really explained what the exact difference is.
And this is part of the crux of the dispute - there used to be an Act of Congress authorising the appointment of special counsels, but it expired in 1999 and was not renewed. Supporters of Judge Cannon’s decision - not just Trump’s own lawyers, also conservative legal scholars such as professor Josh Blackman [0] - argue that with the expiry of that statute, there is no longer any Congressional authorisation for appointment of special counsel as “inferior officers”, and hence Jack Smith’s appointment is unconstitutional. Conversely, Smith (and the DOJ and A-G) argue that statutory authority can be found in various other provisions-I know one thing they’ve pointed to is a few “left-over” cross references in the US Code to the now expired independent counsel statute. The crux of the dispute is whether those “left-over” provisions are sufficient to meet the constitutional burden
[0] https://reason.com/volokh/2024/07/16/new-in-harvard-jlpp-per...