Judge Aileen Cannon’s decision to allow three law professors to argue — in open court — whether Special Counsel Jack Smith is constitutionally appointed is a remarkable departure from precedent. It underscores the threat to Mr. Smith’s job security.

The order, docketed on Tuesday, grants the request of these legal sages — Joshua Blackman, Gene Schaerr, and Matthew Seligman —  to make their case in court at a dedicated hearing on June 21. All three are already amicus curiae, or friends of the court. That means that they have filed briefs outlining their positions. 

Usually, that is where the role of amici, who are not themselves representing parties to a case, ends. If their arguments find judicial favor, they could be cited in the decision, possibly in a footnote. That is a high honor. The Supreme Court has held that participation in oral arguments, though, is encouraged only “in the most extraordinary circumstances.”

Mr. Seligman, in his motion seeking leave to orally argue, runs the numbers. He finds that between 1980 and 2015,  “only nine of the 4,045 (0.222497 percent) oral arguments in the Supreme Court” were made by non-governmental amici. The Nine explain that counsel “may seek leave of the Court to argue orally by a motion setting out specifically and concisely why oral argument would provide assistance to the Court not otherwise available.”

A judge in the Southern District of Florida, where Judge Cannon sits, has held that  “it is solely within the discretion of the court to determine the fact, extent, and manner of participation by the amicus.” Mr. Seligman filed his motion only after Messrs. Blackman and Schaerr, who oppose the special counsel, made their request to appear in court. Each of the three will be alloted 30 minutes.

While those are the only three scholars who will be heard in court, blue chip legal names have gravitated to this issue. Mr. Seligman is supported by the lawyer George Conway, the professor Laurence Tribe, and a former special counsel, Patrick Fitzgerald. Mr. Schaerr is backed by Attorneys General Meese and Mukasey. 

Challenges to Mr. Smith on the basis of the Appointments Clause have been mounted  in both of his cases against Trump, but only before Judge Cannon  has the 45th president adopted them himself. Justice Clarence Thomas asked why he has not done so in the January 6 case. Trump’s lawyer, John Sauer, explained that “we have done so in the Southern District of Florida.”

That response to Justice Thomas suggests that Judge Cannon’s decision will affect the January 6 case as well. Both are being prosecuted by Mr. Smith, who was working at the Hague when Attorney General Garland named him as special counsel, two days after Trump declared his latest run for president. Unlike, say, Special Counsel Robert Hur, who investigated President Biden, Mr. Smith was not previously confirmed by the Senate.

The question before Judge Cannon will be whether Mr. Smith’s appointment is valid in the absence of presidential nomination and confirmation by the Senate. The special counsel contends that it is because the Constitution ordains that  “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.”  Mr. Smith asserts that his office is this kind of “inferior” one because Mr. Garland oversees him, and can fire him. Mr. Seligman seconds that argument, and will make it in court. 

Mr. Smith, in his own filing, maintains that the arguments opposing the manner of his appointment are neither “novel or meritorious; to the contrary, every court that has considered them has rejected them — including authoritative decisions by the Supreme Court.” He calls the notion that he would need the imprimaturs of the president and the Senate “meritless.”

A different position is taken by Mr. Schaerr, who writes that nothing “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.” He adds that the special counsel “is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation.” 

Mr. Blackman, who is representing another professor, Seth Barrett Tillman, agrees with Mr. Schaerr that Mr. Smith’s appointment is “a serious problem for the American rule of law,” but for a different reason. He will argue that Mr. Smith is not a superior officer but a mere “employee” who lacks the independent authority to prosecute the case in the absence of a duly appointed United States attorney. 

The Supreme Court, in a 1968 case, United States v. Hartwell, reckoned that an officer’s duties are “continuing and permanent, not occasional or temporary.” An employee, on the other hand, is possessed of only transitory authority. Mr. Blackman writes that “if all of the current special counsels finish their work, their positions would cease to exist, and there is no continuing institutional framework that would remain.”

Mr. Blackman has told the Sun that constitutionally speaking, Mr. Smith is “too big for his britches.” Now, he will have the opportunity to tell Judge Cannon the same.