‘That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department”,* can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.’

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The above is from the pen of Justice Antonin Scalia, now gone alas, in one of the most famous dissents ever issued from the Supreme Court. Scalia’s dissent — from the idea of an independent counsel — comes to mind as three towering constitutionalists, Edwin Meese, Steven Calabresi, and Gary Lawson, press an amicus brief in the case of United States v. Trump. They argue that the special counsel prosecuting President Trump, Jack Smith, is “improperly appointed” and has no standing.

The amici liken Mr. Smith to a “modern example of the naked emperor.” They argue that as the special counsel he “has no more authority to represent America in this Court than, say, “Taylor Swift, or Jeff Bezos.” The pop star and Midas-like Amazonian might all command the attention of millions, but none can argue for America before the high court. In the requirement of standing, they argue that no one can “shake it off.” Not even Mr. Smith.  

The amici mark in the special counsel’s appointment a “serious problem for the American rule of law.” For one, the Appointments Clause requires that all federal offices “not otherwise provided for” in the Constitution must be “established by Law.” Yet, the brief notes, there is, in the entire annals of the Justice Department, no statute establishing the Office of Special Counsel, let alone one, like Mr. Smith, who operates at the level of an attorney general.

Messrs. Meese, Calabresi, and Lawson cut to the constitutional quick, finding “no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel.” That is, they argue, because the office of special counsel is not an “inferior” one of the type that, the Constitution says, can be filled by the “President, the Courts of Law, or the Heads of Departments.”

Superior or principal officers, in contrast, require presidential appointment paired with senatorial confirmation. This is true of everyone from the secretary of state to each of the 93 or so United States attorneys. No such presidential involvement and no such Senate vote accompanied the investiture of the man the amici call “citizen Smith.” Instead, he was named by Attorney General Garland, in an act that the brief calls “ex nihilo”** freelancing.

There are codes providing for special counsels. They go by “Reno Regulations,” after the attorney general who promulgated them. Mere regs, though, are not constitutional bedrock. There was a law — the Ethics in Government Act of 1978, which created the office of an “independent council” — but it lapsed, unmourned by either party, in 1994. With that, say Messrs. Meese et al, so did the possibility of willy-nilly elevating a citizen to special prosecutor. 

We, though, return to Scalia. He was the lone justice to spot the wolf  in a seven to one ruling where the majority upheld the independent counsel. It turned out to be the dissent that was proven right, as the Congress let the law expire. There are no longer independent counsels. Amici are extending Scalia’s logic to special counsels, a move that The New York Sun has been arguing should have been done long ago.

Which brings us back to Scalia. The supremacy of the Constitution and the importance of separated powers are paramount. For “executive power” is vested in only the president. To delegate part of it, he needs Senate confirmation. The inferior officers who, the Constitution says, can be appointed by departments or the courts cannot comprise a figure like Mr. Smith. For in boasting of special authority, Mr. Smith, as Scalia famously put it, “comes as a wolf.”  

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* 51 Federalist.

** meaning, out of nothing.

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Correction: 93 is the number of United States attorneys. An incorrect number was given in the bulldog.