Courts & Litigation Executive Branch

Pearce Argues in Fort Pierce

Anna Bower
Monday, June 24, 2024, 7:41 PM
A dispatch from Judge Cannon’s hearing on the legality of the appointment of Special Counsel Jack Smith.
Alto Lee Adams, Sr. U.S. Courthouse (Photo credit: Anna Bower)

Published by The Lawfare Institute
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It’s 9:30 a.m. at the federal courthouse in Fort Pierce, Florida, where U.S. District Judge Aileen Cannon is set to hold a daylong hearing on the legality of the appointment of Special Counsel Jack Smith.

A bespectacled Judge Cannon enters, her hair swept up in a bun.

The parties introduce themselves. For the Special Counsel’s Office, it’s the usuals, Jay Bratt and David Harbach, joined today by James Pearce, a career prosecutor who has argued several high-profile appeals on behalf of the Special Counsel’s Office.

For Trump’s defense, it’s Todd Blanche, Emil Bove, and Chris Kise. Blanche and Bove are fresh off their loss in New York state court, where a jury returned a guilty verdict against their client on 34 felony counts last month. But if that loss is wearing on them, they aren’t showing it. As their client campaigns for the presidency hundreds of miles away, Blanche and Bove appear more relaxed than I’ve seen them in months.

Counsel for Trump’s co-defendants, Waltine Nauta and Carlos De Oliveira, are also here. For Nauta, it’s Stanley Woodward and Sasha Dadan. For De Oliveira, it’s John Irving.

But the lawyers for the defense and prosecution aren’t the only attorneys in court today. That’s because Judge Cannon took the unusual step of allowing counsel for three groups of amici curiae—non-parties—to participate in today’s motions hearing. So the attorneys representing the amici curiae—Matthew Seligman, Josh Blackman, and Gene Schaerr—are seated in the gallery as the hearing gets underway.

Judge Cannon explains that she intends to kick off today’s hearing with argument from defense counsel, who are seeking dismissal of the case based on the “unlawful appointment” of the special counsel. Who will be presenting argument for Trump? she asks. Bove pipes up: I will, Your Honor.

Bove makes his way to the lectern positioned in the center of the courtroom. He begins by announcing that his argument today will focus on two key issues with respect to the Appointments Clause of the Constitution.

The first issue is what Bove refers to as the defense team’s “by law” argument. He’s referring to the text of the Appointments Clause, which provides that executive branch federal offices not “otherwise provided for” in the Constitution “shall be established by Law.” Trump’s motion to dismiss argues that this language gives Congress—and Congress alone—the power to create new federal offices not otherwise established by the Constitution (the presidency, for example). The brief contends that Smith’s appointment violates the Appointments Clause because Congress has not enacted a statute that creates an “Office of Special Counsel.”

To be sure, Trump’s brief acknowledges that there are statutes authorizing the U.S. attorney general to appoint attorneys to a range of positions within the Justice Department. Attorney General Merrick Garland cited some of these statutes—28 U.S.C. §§ 509, 510, 515, and 533—in his 2022 order appointing Smith as special counsel. But Trump’s filing claims that none of these provisions empower the attorney general to create an office of the special counsel or to appoint Smith to that office. At bottom, it’s a statutory interpretation argument, which is why Bove first wants to focus his argument on the text of the relevant statutes cited in Garland’s appointment order. 

The second issue Bove says he wants to address today relates to the distinction between “principal” and “inferior” officers under the Appointments Clause. The Appointments Clause distinguishes two types of federal “officers”—principal officers and inferior officers—and sets out the procedure by which each may be lawfully appointed. Generally, principal officers must be appointed by the president with “the Advice and Consent of the Senate.” But the Appointments Clause permits an alternative appointment process for “inferior officers”: It says that “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.”

In other words, the defense argues, while principal officers must be nominated by the president and confirmed by the Senate, Congress can enact legislation that permits heads of federal agencies—such as the attorney general—to appoint inferior officers.

Ahead of the hearing, an amici curiae brief filed on behalf of former Attorney General Edwin Meese and others argued that special counsel Jack Smith is a principal officer. Accordingly, under this view, Smith’s appointment violates the Constitution because he was appointed by the attorney general, not by the president with the advice and consent of the Senate.

But Trump’s position on the “principal officer” argument has remained somewhat murky. Initially, Trump’s motion to dismiss seemed to suggest that the special counsel may not be an “Officer of the United States” at all. “At best, [Smith] is an employee,” according to the motion. But as the Special Counsel’s Office rightly points out in its response brief, Trump’s Appointments Clause argument would collapse if that were true. The Appointments Clause governs the appointment of federal officers, not lower-level employees. If the special counsel were not an “Officer of the United States,” then the Appointments Clause would have no application whatsoever.

All of which may be why Bove now tells Judge Cannon that he intends to address the “principal officer” argument put forward in the Meese brief. He clarifies, at the judge’s prompting, that Trump’s view is that the special counsel is a “principal officer,” not a “mere employee.”

With these introductory remarks behind him, Bove turns to his first topic: statutory interpretation. Looking at the text of the relevant statutes here, he says, it’s clear that those statutes do not authorize the attorney general to appoint a special counsel. Bove acknowledges that there are appellate court decisions that seem to suggest otherwise. But those cases, he argues, didn’t really engage in textual analysis of the statutory language.

Turning to that statutory language, Bove begins with 28 U.S.C. § 533, which provides that the attorney general “may appoint officials to detect and prosecute crimes against the United States.” He points out that the text refers to “officials,” not “officers.” That’s important, he says, because the statute doesn’t provide for what the Constitution requires, which is the authority to appoint an “officer.”

Judge Cannon interjects: Are you aware of any other “vesting statutes” that use the term “official” rather than “officer”?

I am not, Bove replies.

Then Judge Cannon wonders aloud if Bove could shed any light on the “historical” use of § 533 to appoint special counsels. Bove, in response, notes that the government’s brief cites the Supreme Court’s decision in United States v. Nixon. In that case, the attorney general appointed a special prosecutor to investigate and prosecute offenses related to the 1972 presidential election. In holding that President Richard Nixon could be forced to comply with a subpoena issued by the special counsel, the Supreme Court also established that the attorney general holds statutory authority to appoint a special counsel. The Court’s decision explicitly cited § 533:

Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power 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 assist him in the discharge of his duties. 28 U.S.C. § 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.

Despite this seemingly clear guidance from the Supreme Court, Bove claims that Nixon is not decisive. Nixon did not involve thoughtful analysis of the statutory text, he says. What’s more, Bove points out, § 533 was not even cited by Acting Attorney General Rod Rosenstein when he appointed Robert Mueller as special counsel in 2017.

He next turns to a statute that the Mueller appointment order did cite: 28 U.S.C. § 515, which gives the attorney general authority to appoint “special attorneys” or “special assistants.” The statute reads as follows:

(a) 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.

(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.

Bove points to two cases that have discussed the attorney general’s authority to appoint a special counsel under § 515: United States v. Concord Management and Consulting LLC and In re Sealed Case. Bove admits that the conclusion reached in those cases “comes out against us”—meaning that the court in each case ultimately determined that the attorney general had statutory authority to appoint an independent or special counsel. Still, Bove continues, the court in both of those cases nonetheless recognized that the statutory language doesn’t explicitly authorize the attorney general to appoint a special counsel.

Judge Cannon pipes up to ask what Bove thinks the term “special attorney” means in § 515. Does it have the same meaning as that term is used elsewhere in Title 28?

Bove replies that “special attorney” in § 515 is consistent with how that term is used in 28 U.S.C. § 543, which provides that the attorney general may appoint attorneys “to assist United States attorneys when the public interest so requires.” It follows, Bove argues, that these statutory provisions don’t authorize the appointment of a special counsel who operates with the degree of independence that Smith does. He clearly wasn’t appointed to “assist” a United States attorney, Bove says. If it were otherwise, Bove says, then the attorney general would be able to set up a “shadow government” that would allow a special counsel to wield extraordinary power with little oversight and without the advice and consent of the Senate.

That sounds “very ominous,” Judge Cannon says with some skepticism. But is that a realistic risk when you have other federal regulations that govern the role of special counsels and other Department of Justice employees?

It is a realistic risk, Bove urges, because it seems to be what happened here.

Judge Cannon cuts him off: I don’t know that it’s appropriate to cast aspersions about that with respect to this case.

The judge pivots back to the text of the statute. Is there anything to be gleaned from the use of the term “commissioned” in § 515(b)? Is that more consistent with reading the text as a grant of authority to appoint “officers”? 

I don’t think that’s right, Judge, Bove says. I’d have to look back at that.

Next, Judge Cannon asks aloud if there’s something to be said for “congressional acquiescence” to the practice of special counsel appointments. She’s referring to the idea that congressional inaction in response to the Supreme Court’s decision in Nixon and the historical use of special counsels could indicate that Congress has effectively approved of the practice. 

Pushing back on this idea, Bove says that acquiescence can’t be part of the textual analysis of what the statutes do or do not authorize.

Judge Cannon then announces that she wants to focus on the special counsel regulations. She’s talking about the Justice Department’s regulations—called the Reno Regulations—that were promulgated by then-Attorney General Janet Reno in 1999 and which govern the appointment, oversight, and removal of a special counsel.

Do the regulations authorize the attorney general to “direct” the conduct of the special counsel? Judge Cannon asks. The question seems to be related to the issue of whether Smith is considered a “principal” or “inferior” officer under the Appointments Clause. In Edmond v. United States, the Supreme Court set out a multi-factor test to assess whether an officer is inferior: the degree of oversight over the officer, the removability of the officer, and the officer’s decision-making power. And Judge Cannon appears to be particularly interested in the extent to which the special counsel regulations establish a degree of oversight.

According to Bove, 28 CFR § 600.7 makes clear that the special counsel is not subject to day-to-day supervision by the attorney general or any other official. That regulation does allow the attorney general to order Smith not to pursue an “investigative or prosecutorial step,” but only if he concludes, after giving Smith’s views “great weight,” that Smith’s proposed step is “inappropriate or unwarranted under established Departmental practices.” The fact that the attorney general must give “great weight” to the views of the special counsel suggests that the special counsel makes him more like a principal rather than an inferior officer. What’s more, Bove continues, Attorney General Garland recently doubled down during his recent congressional testimony, saying that he appointed Smith because he was independent. 

Would these regulations require the attorney general to sign off on the seeking of an indictment by the special counsel? Judge Cannon inquires.

I don’t think that’s clear, Bove replies. 

Judge Cannon asks if Bove thinks that there’s any need for further factual development on the degree of oversight between the special counsel and the attorney general. Bove, in reply, suggests that additional factual development may be necessary on the issue of how the government has been operating with respect to the relationship between the Special Counsel’s Office and the attorney general. In the Concord Management case, he continues, the government represented that there were regular meetings and consultation between the attorney general and the special counsel. But we don’t think that’s what’s been happening here. So that’s why we think further factual development may be needed here, he says. 

Judge Cannon now turns to the Supreme Court’s decision in Nixon. She wants to know how the court should weigh that decision, in which the Supreme Court stated that the attorney general has statutory authority to appoint a special counsel. What does Bove make of the government’s argument that the court’s language regarding appointment authority is not mere dicta but, rather, an essential part of the court’s holding?

Bove notes that the question of whether the attorney general had statutory authority to appoint a special counsel in that case was never briefed by the parties in that litigation. That’s because President Nixon never contested the attorney general’s statutory authority. What’s more, he contends, the Nixon court did not engage in a careful textual analysis of the statutes. That’s “self-evident” because there’s no discussion in Nixon of the statutory framework “at all.” The language in Nixon is thus dicta, he argues, and subsequent case law in the U.S. Court of Appeals for the D.C. Circuit erred by taking that dicta at “face value.”

We’re approaching 11:30 a.m., Judge Cannon observes at this point. I’ll hear from the Special Counsel’s Office, she says. Bove retreats to his seat at the defense table as James Pearce strides to the lectern.

The defendant’s arguments, Pearce begins, are foreclosed by history and precedent—and would have “pernicious” consequences. 

Turning first to the statutory authority issue, Pearce asserts that Nixon and its progeny conclusively resolved the question of whether the attorney general has authority to appoint a special counsel. 

Judge Cannon interjects: What in Nixon suggests that was indeed concluded?

We agree with defense counsel’s representation that the issue was not briefed by the parties in that litigation, Pearce replies. But that’s not conclusive as to whether something is mere dicta or a holding that is binding on this court. The relevant question is whether the court necessarily had to decide the issue to resolve the case or controversy. 

Judge Cannon follows up by asking why the Nixon court necessarily had to decide the statutory authority question. 

If the attorney general had lacked statutory authority to appoint the special counsel in that case, Pearce argues, then the regulation empowering the special prosecutor to issue President Nixon’s subpoena would have lacked the force of law. To get past the justiciability threshold and to reach the merits of the case, Pearce argues, the Court necessarily had to determine that the attorney general had the statutory authority to appoint the special prosecutor. Though it did not engage in “extended” discussion of the relevant statutes, the Court’s decision on that point was a necessary “antecedent” to deciding whether there was a case or controversy.

Even if this court considers Nixon to be dicta, Pearce continues, the U.S. Court of Appeals for the Eleventh Circuit has recognized that there is dicta and then there’s Supreme Court dicta. Supreme Court dicta is a different “genre” of dicta that’s entitled to the sort of deference “all the other judges” have given it, Pearce says.

Judge Cannon announces that she wants Pearce to address the Reno Regulations. I want to understand where they steer the attorney general to direct the litigation of the special counsel, she says.

You don’t even have to go to the regulations for that, Pearce retorts. The statutory framework itself makes clear that the attorney general directs litigation on behalf of the United States. He’s alluding to 28 U.S.C. § 516, which vests the attorney general, as the head of the Justice Department, with exclusive authority to direct the “conduct of litigation” on behalf of the United States (except as otherwise provided by law). 

Still, Pearce continues, the regulations seek to strike a balance between supervision of the special counsel’s work and some degree of independence. As an example, he points to a provision of the special counsel regulations, which provides that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Additionally, Pearce says, the attorney general retains supervisory authority over the special counsel because he retains the power to amend the appointment order or to revoke the special counsel regulations altogether.

Do the regulations require the attorney general to approve an indictment sought by a special counsel? Judge Cannon inquires. 

Pearce replies that he’s not aware of anything that would require a special counsel to seek such approval—just as a U.S. attorney is not required to receive approval from the attorney general before seeking an indictment. But it would be a step that a special counsel could take, Pearce says.

Moving on, Judge Cannon asks Pearce to discuss the text of § 533, which authorizes the appointment of “officials” to “detect and prosecute crimes against the United States.”

Focusing on the “officials” language, Pearce pushes back against Trump’s argument that “officials” means “employees.” That argument “begs the question” why Congress didn’t just say “employees.” The “cleaner” reading of the statute, according to Pearce, is that “officials” refers to both “employees” and “officers.” The best interpretation is that the statute captures both. 

Judge Cannon repeats a question she asked Bove: Are you aware of any other vesting statutes that use the term “officials” rather than “officers”?

Pearce says that he’s not aware of any before reiterating his argument that the best reading of “officials” in § 533 is that it includes both “officers” and “employees.”

Now Judge Cannon is ready to move on to § 515, which the government contends gives the attorney general authority to appoint “special attorneys” like the special counsel. What’s your best authority for understanding “special attorney” in § 515 as a type of independent counsel who leads rather than assists a prosecution?

Pearce cites the widespread historical use of special counsels, including the appointment of independent counsels by Ulysses Grant and Theodore Roosevelt. And he points to the legislative history of § 515 and its precursor statute, arguing that Congress in 1930 effectively “ratified” the practice of appointing special counsels when it amended the precursor to § 515(b) to allow the attorney general to designate “special attorneys” in addition to “special assistants to the Attorney General.”

What do you make of the fact that § 515 uses the term “retain” rather than “appoint”? Judge Cannon asks.

Pearce says he doesn’t see a meaningful difference between “retain” and “appoint.” What’s more, he continues, the statute also uses the term “commissioned,” which evokes the authority to empower a person to perform the duties of an “Office of the United States.”

But is there any concern that we’re getting further away from the language of the Appointments Clause? Judge Cannon muses. “Official” is “officer,” “retained” is “appointed.” Doesn’t that start to get into a more malleable reading of the Constitution? 

To be clear, Pearce replies, we’re talking about statutes that are consistent with the Constitution. The Supreme Court in Nixon itself identified the statutes we’re talking about here, he reminds the judge.

With his time at the lectern waning, Pearce concludes by addressing the potential consequences that could result from Trump’s argument. If I understand the arguments of the defendant correctly, Pearce says, then it follows that there have been other officials at the Justice Department who have been acting without authority for a number of years—including deputy assistant attorney generals. 

That exhausts my questions for now, Judge Cannon announces. The court recesses for lunch. 

*          *          *

When the parties return to court an hour later, Judge Cannon explains that she will now hear argument from counsel for the amici curiae. She invites Matthew Seligman, counsel for a group of constitutional lawyers and former government officials, to the lectern.

Seligman explains that he intends to focus his argument on two questions: Is the special counsel an “inferior officer” under the Appointments Clause? And do the statutes cited in the appointment order vest the attorney general with authority to appoint a special counsel? According to Seligman, the answer to both questions is “yes.”

Seligman first contends that well-established precedent compels the conclusion that the special counsel is an “inferior officer.” In support of this argument, he cites the Supreme Court’s decision in Morrison v. Olson, in which the court upheld the constitutionality under the Appointments Clause of the so-called independent counsel statute, which authorized a three-judge panel of the D.C. Circuit to appoint a prosecutor who had strong protections against removal by the president. As a part of that decision, the court held that independent counsel was an “inferior officer” under the Appointments Clause.

What’s more, he argues that the factors distilled in Edmond support the conclusion that the special counsel is an inferior officer. Seligman focuses on the fact that the special counsel has a superior officer—the attorney general—to whom he is subject to oversight, control, and removal.

Judge Cannon peppers Seligman with questions about the degree of oversight that an attorney general has over a special counsel under the Reno Regulations. Noting that an inferior officer must be subject to direction, she wonders aloud if there is a sufficient degree of “direction” by the attorney general vis-à-vis the special counsel. Where in the regulations is there anything that establishes authority for direction of litigation strategy? 

Seligman notes that the regulations establish that the attorney general may overrule decisions of the special counsel, provided that he finds the decision to be “so inappropriate or unwarranted” that it should not be pursued.

Judge Cannon volleys questions at Seligman regarding the status of other officers within the Justice Department. Is the solicitor general a principal officer? Yes. United States attorneys? No. Assistant United States attorneys? No, they’re employees.

Echoing Pearce’s arguments regarding the “pernicious” consequences of the defendants’ statutory authorization argument, Seligman tells Judge Cannon that accepting that argument would have a significant impact on other offices in the Justice Department. If the special counsel was unlawfully appointed, he argues, then it would follow that deputy solicitor generals were also unlawfully appointed.

Turning to the language of § 533, Judge Cannon asks Seligman why the term “officials” encompasses “officers.” The Constitution doesn’t have a “magic words” requirement, Seligman replies. Here, the statute uses the term “officials” because it's a more capacious term that encompasses both employees and inferior officers. And this is commonly how “officials” is used in other statutes, as the cases we cite in our brief show, Seligman says.

Seligman wraps up his argument and cedes the floor to Josh Blackman, who is here to argue on behalf of Landmark Legal Foundation and Seth Tillman, a law professor who has written extensively on the meaning of “Officer of the United States” in the Constitution. Ahead of the hearing, Blackman filed an amici curiae brief in support of Trump’s motion to dismiss. But while Trump takes the view that the special counsel is a principal officer, Blackman’s brief argues that Smith is not an “Officer of the United States” at all. Instead, the brief argues that the special counsel is a mere “employee.” Still, the amici contend that Trump’s charges should nonetheless be dismissed because a mere “employee” like Smith cannot lawfully exercise the broad prosecutorial powers of a U.S. attorney.

Now, as Blackman positions himself behind the lectern in Judge Cannon’s courtroom, he begins by stating that there are two questions that the court must answer in resolving Trump’s motion. First, there’s the question of how to characterize Smith. Is he a principal officer, an inferior officer, or an employee? Second, what power did the attorney general have to appoint Smith?

Blackman explains that the Tillman amici agree with Trump on the latter question: The attorney general did not have authority to appoint Smith as special counsel. But they disagree with Trump on the former. The special counsel is an employee, he says, not an “Officer of the United States.”

In support of his argument, Blackman argues that a position that is not “continuous” cannot amount to an “Officer of the United States.” Continuity is an “essential element” of being an officer, he says.

This serves the common good because “continuity” means “accountability.” Blackman begins to quote Spider-Man, “With great power….” But before he can get the famous comic book line into the record of a criminal proceeding against the former president, Judge Cannon cuts him off.

Blackman then discusses why the special counsel’s position is noncontinuous and, thus, cannot be an “Officer of the United States.” Discussing the factors considered in Morrison—tenure, duration, and duties—Blackman argues that the special counsel’s position is temporary because Garland’s order appoints Smith to accomplish a “single task.”

I’m not sure that’s a fair reading of the appointment order, Judge Cannon muses aloud.

Blackman presses on, focusing on the argument that the Special Counsel’s Office is not continuous because there is no mechanism by which the special counsel could be terminated while the permanent position continues. To underscore this point, Blackman says that if Special Counsel Smith resigned at this very moment, then the lead prosecutor on this case, Jay Bratt, couldn’t continue prosecuting the case. There would have to be a new appointment from scratch because the Special Counsel’s Office wouldn’t “continue” absent the special counsel.

Judge Cannon doesn’t sound entirely convinced. But what does continuity mean at the end of the day? Couldn’t it mean a multiyear investigation, building a staff from the ground up?

Blackman reiterates that the relevant factors are tenure, duration, and duties. Many positions fulfill this criteria, Blackman contends, but not Mr. Smith’s.

Judge Cannon encourages Blackman to wrap up, and he eventually does. But not before he addresses the fact that the Supreme Court in Morrison held that the independent counsel in that case was an inferior officer. Blackman, whose brief argues that the Morrison court conducted the wrong analysis on that point, takes the opportunity to invite Judge Cannon to overrule Morrison. I don’t know if the defendants preserved the issue of whether Morrison should be overruled—but I will, he declares.

Blackman is done. Up next: Gene Schaerr on behalf of amici curiae, including former Attorney General Edwin Meese, Steven Calabresi, and Citizens United Foundation.

Schaerr claims that Smith’s appointment “seriously undermines” the constitutional structure. He argues that Smith is a principal officer and, as such, that his appointment violates the Appointments Clause because he was not appointed by the president with the advice and consent of the Senate. He more or less rehashes the arguments put forward by Bove on behalf of Trump: Nixon is mere dicta, the attorney general does not have sufficient supervision over the special counsel, “officials” in § 533 does not authorize the appointment of “officers.” And so on.

Thank you very much, Judge Cannon says to Schaerr when he concludes. Alright, I’ll hear rebuttal from Mr. Bove and then Mr. Pearce before we conclude, she adds.

Bove hurries to the lectern. The reasoning that the government wants Your Honor to adopt, he argues, is that just because something has happened before then it must be okay. But past practice or “congressional acquiescence” has to fall away in the context of the relevant statutes, which were enacted together as a part of the same public law. As such, the language of these statutes must be read consistently. 

Bove then turns to the issue of whether the special counsel should be considered a principal or inferior officer. Focusing on the degree of independence exercised by the special counsel, Bove says that prosecutors previously told Judge Tanya Chutkan—the presiding judge in Trump’s election interference case in Washington, D.C.—that there had been “no coordination” between the special counsel and the attorney general. Further, Bove continues, the attorney general himself has suggested that the special counsel is acting independently.

Bove also questions whether the special counsel is in full “compliance” with policies set out in the department’s Justice Manual. His argument, it seems, is that a failure to comply with the Justice Department’s policies could indicate that Smith is operating with an unusual degree of independence or lack of oversight.

Bove, having concluded his rebuttal, returns to his seat at the defense table. Now Pearce is up to have the last word. I want to start, he says, by representing that the Special Counsel’s Office is in “full compliance” with the Justice Department’s policies.

Judge Cannon presses Pearce on this claim: So to what extent has there been actual supervision of the special counsel? Did the attorney general have any role in the decision to seek the indictment?

I don’t want to get into internal deliberations, Pearce replies. I’m not trying to hide anything, he assures Judge Cannon. But I’m not prepared at this time to get into what the special counsel has or has not done.

“Why would there be heartburn to answer whether the attorney general signed off on the indictment?” the judge retorts.

Pearce reiterates that he’s not prepared to discuss internal deliberations at this juncture.

Judge Cannon pivots. What about defense counsel’s claim that the Special Counsel’s Office has represented that there has been “no coordination” with the attorney general? The representation, Pearce clarifies, was that there has been no coordination with the Biden administration. 

Pearce next addresses Judge Cannon’s inquiries regarding other “vesting statutes” in the U.S. Code that refer to “officials” rather than “officers.” During the break, Pearce explains, prosecutors were able to locate some additional statutes that use the term “officials.” He rattles off a list: 18 U.S.C. § 831(E), 10 U.S.C. § 397, 6 U.S.C. § 458.

Then Pearce addresses Blackman’s request that the court overrule Morrison. I think, Pearce says, that Mr. Blackman asked this court to overturn the Supreme Court’s precedent in Morrison v. Olson. Pearce begins to make further argument against that proposition, but Judge Cannon interjects: I've heard enough on the “employee” topic, she says.

Pearce reiterates his argument that Nixon is not mere dicta before he wraps up. “We ask that the court deny the motion,” he concludes.

Before she adjourns, Judge Cannon announces that she will allow the defense and the prosecution to file five additional pages worth of supplemental authorities. I want to thank everyone for being here, she says.

And with that, we’re done for the day.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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