Mr. Pearce argued that there are statutes that invoke the concept of an official but that really mean officer. He made historical references, and the judge moved on to ask about statutory authority.
Judge Cannon asked where the special counsel statute was, saying the prosecution had relied on a patchwork of other statutes to justify the authority.
Mr. Pearce referenced President Ulysses Grant exercising authority over a special prosecutor, and said that in appointing inferior officers, the president is on equal footing with department heads.
Mr. Bove argued that the prosecution's position is that the attorney general has oversight over Mr. Smith, making him a properly appointed inferior officer, but in the District of Columbia the special counsel has argued that he is completely independent from the Biden administration.
According to the department's internal regulations for special counsel, oversight is required.
Mr. Pearce argued that the special counsel is indeed independent from the White House, but not the attorney general. He argued that the attorney general has the power to rescind his orders at any time, and to overrule a decision by the special counsel.
Mr. Bove, on rebuttal, argued that just because the Justice Department has made unlawful appointments in the past does not justify an unlawful appointment.
He said all the statutes discussed came from a law enacted in 1966, and the section that defines "special attorneys" gives them a far narrower role than the "special counsel" today.
Mr. Bove had no answer for the judge when asked why Congress would not just have used "employee" instead of "official" and "special attorney" if this was the intended definition. But, he argued, the prosecution's position requires expanding the definitions laid out in those statutes and a criminal prosecution was not the proper setting to test that authority.
Judge Cannon asked if their position affects other roles such as the deputy assistant attorney general, which is not a Senate-confirmed role.
Mr. Schaerr said it would not, as these other roles that are not appointed by the president do not act as superior officers.
Mr. Schaerr argued that currently the attorney general can ask questions and review Mr. Smith's actions and decisions, but he does not have to, and that is a sign that Mr. Smith is not acting as an inferior officer.
Mr. Schaerr argued that the Supreme Court's decision allowing an independent counsel to investigate President Nixon was not at all binding dicta that the attorney general has the authority to appoint special counsel, as it did not deal with an attorney general's authority at all.
Gene Schaerr argued on behalf of former attorney generals Edwin Meese and Michael Mukasey, constitutional law experts, and Citizens United.
Mr. Schaerr argued that Congress has not given the attorney general the power to appoint superior officers. A U.S. attorney is an example of a superior officer.
In this case, Mr. Schaerr argued, that the attorney general tried to give an inferior officer all the powers of a superior officer without all the accountability a U.S. attorney has.
Mr. Blackman argued that Section 515, which the prosecution cites as authority to appoint special counsel, deals with the commissioning of employees, not officer appointments.
Mr. Blackman said his reading of the statute is that the attorney general can commission employees, such as special attorneys, not appoint officers. If an attorney general were to appoint a special counsel with the duties of an officer, that would be a violation of the Appointments Clause, he argued.
Mr. Blackman argued that if President Biden had appointed a confirmed U.S. Attorney as special counsel to prosecute former President Trump, there would have been no problem.
Mr. Blackman said that special counsel are necessary to investigate high-ranking government officials, which applies to the case Mr. Smith is prosecuting against former President Trump in the District of Columbia, but not in Florida where the conduct involves actions the former president took more than a year out of office.
The judge then assumed Mr. Blackman had finished, but he said he had another point to make. This happened a few times.
Josh Blackman, representing the Landmark Legal Foundation, and professor Seth Tillman, argued that both sides have incorrectly characterized Mr. Smith's role.
Mr. Blackman argued the issue wasn't whether Mr. Smith is an inferior or superior officer, his role does not satisfy the definition of an "office" as the Supreme Court has ruled on it. He argued that an office requires continuity and permanence.
Continuity is required for accountability, Mr. Blackman argued. If Congress creates a role, it could help them today and hurt them tomorrow. Mr. Blackman tried to make a pop culture reference before the judge cut him off.
Matthew Seligman argued on behalf of a group of constitutional lawyers, former government officials, and the State Democracy Defenders.
He said the motion at hand is concerned with two issues, whether the special counsel is an inferior officer and whether Congress vested authority for the attorney general to appoint a special counsel. Mr. Seligman argued the answer to both questions is "yes."
Mr. Seligman argued there was sufficient department direction given to Mr. Smith to qualify him as an inferior officer, and he can be overruled by the attorney general.
Judge Cannon asked the prosecution for their best authority that Section 515 authorizes a special counsel to lead, rather than just assist, with a prosecution.
Mr. Pearce said that President Theodore Roosevelt appointed such a prosecutor in 1903, and then in 1930 Congress introduced the term special attorney.
Judge Cannon asked if that "special attorney" role is the same as the "special counsel" used today.
Mr. Pearce argued that though the appointment order for Mr. Mueller did not cite 28 U.S. Code Section 533, the department "relied on it extensively."
When the judge asked why it was not included, he said he did not know.
Mr. Pearce added that the department also relied on 28 U.S. Code Section 515, which governs the authority of those appointed by the attorney general. He said the department did not rely on Section 543, which is about the attorney general hiring special attorneys to assist him directly.
Mr. Pearce argued that special counsel, appointed under the department's regulations, are subject to more oversight than the independent counsel whose role expired when Congress allowed the law creating that office to lapse in 1999.
He said the special counsel is under direct supervision of the attorney general, but not day-to-day supervision.
Judge Cannon asked whether the attorney general has to sign off on an indictment Mr. Smith brings.
James Inman Pearce argued for the prosecution. Mr. Pearce argued that historical precedent makes clear that the attorney general can appoint an inferior officer like Mr. Smith, as does Supreme Court precedence.
Notably, during the Nixon era, eight Supreme Court justices had upheld the attorney general's authority to appoint an independent counsel investigating the president. President Richard Nixon had argued the executive branch had authority over the special counsel and that courts should not get involved, and Mr. Pearce argued the Supreme Court had to step in.
Judge Cannon asked why that would be necessary, and Mr. Pearce argued that the Supreme Court had to quash any controversy about the appointment.
The prosecution's position is that the attorney general has the authority to appoint inferior officers and Mr. Smith is one such officer.
Mr. Bove argued that inferior officers have superiors, and Mr. Smith has none. Mr. Bove referenced Mr. Garland's congressional testimony where he emphasized the independence of Mr. Smith's office.
Mr. Bove argued Mr. Smith is a "free-floating" officer, operating too independently. He contrasted this to Mr. Mueller, who had regular meetings with the Justice Department.
Judge Cannon also asked the defense the difference between special counsel, special attorneys, independent counsel, and other similar terms.
Mr. Bove argued that the different names were used when laws assigned different scopes of authority to those different roles. The defense's position is that statutes referring to roles beside the "special counsel" cannot provide Mr. Smith authority.
Mr. Bove argued that an appointment such as Mr. Smith's affords a person outside the government with the powers of an attorney general, in effect allowing for the creation of a "shadow government."
Judge Cannon interrupted Mr. Bove and pressed him to be specific. "Is that a real risk?" she asked.
Mr. Bove argued that Mr. Smith is not subject to the same oversight as the attorney general but wields similar powers. He argued that the statutes invoked only allow Mr. Garland to appoint Mr. Smith and lawfully equip him with the powers of a Justice Department employee.
In appointing special counsel Robert Mueller in 2017, acting attorney general Rob Rosenstein invoked 28 U.S. Code Sections 509, 510, and 515. In Mr. Smith's appointment, Attorney General Merrick Garland additionally invoked Section 533.
This statute gives the attorney general authority to appoint officials to detect and prosecute crimes, assist in the protection of the president and attorney general, and conduct investigations under the control of the Justice Department.
Judge Cannon asked whether this statute did not give the Justice Department authority to appoint Mr. Smith as special counsel, and the defense argued this only allows the attorney general to appoint inferior officers working below him, not independent counsel with the breadth of authority available to Mr. Smith.
Emil Bove argued for the defense, referencing the amicus brief filed by former attorney general Edwin Meese and professors Steven Calabresi and Gary Lawson.
Prosecutors had pointed to a set of internal regulations the Justice Department created just before the 1999 law creating the independent counsel office expired as authority, and Mr. Bove argued that department regulations cannot create an office like that of the special counsel.
Former President Trump is not in attendance today, nor his codefendants Mr. Nauta and Mr. De Oliveira.
U.S. District Judge Aileen Cannon is hearing arguments today on whether special counsel Jack Smith's appointment was lawful. Former President Donald Trump has moved to dismiss his classified documents case, claiming the special counsel's appointment and funding were unlawful.
U.S. Attorney General Merrick Garland in November 2022 appointed Mr. Smith as special counsel to investigate cases against former President Trump with the goal of allowing the Justice Department to maintain independence, as the former president had just announced his intention to seek reelection. Defense attorneys argue Mr. Garland had no authority to make such an appointment.
Mr. Smith is currently prosecuting two cases against former President Trump. In the District of Columbia, he has charged the former president with four counts related to his actions on Jan. 6, 2021. This case has been paused for months, awaiting a Supreme Court review on a presidential immunity issue.