Trump v United States - Per Justice Thomas Only Congress, Not the Biden Administration, May Appoint a Federal "Office" such as that of "Special Counsel" Jack Smith

This week, I originally intended to write about appellate advocacy in light of the Presidential debate.  However, given what occurred, I have postponed these comments because I think the “gas-lighting” regarding the pre-debate condition of our President is a more pressing issue.  Arguably, however, the opinion in Trump v. United States (July 1, 2024) No. 23-939, is an even more important issue, so I will first address at least one aspect of this ruling first, including and especially the concurring opinion by the oldest and longest-serving member of the present court, Justice Clarence Thomas. 

As a life-long civil libertarion I was stunned, quite frankly, when Attorney General Garland created the “office” of the “special counsel” in order to appoint Jack Smith to engage in what many call “lawfare” against President Trump.  This is because only Congress may create a Federal office.  I was not the only one to take notice, for Justice Thomas’  concurrence to the majority opinion sets forth the manner in which “private citizen” Jack Smith was appointed.  

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to pro ceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. (Trump v. United States, pp. 1-2)

Therefore, as Justice Thomas explains at page two, such a prosecution may only be done by someone duly authorized to do so by "the American people.”  He therefore quotes from Article II, Section II, Clause II, of the United States Constitution:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but 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 Department. (Emphasis added.)

Justice Thomas cites to the Federalist Papers, which discuss, with great logic and eloquence, the requirement a President may only appoint someone to an office created by Congress, and not by Executive Branch fiat, grew out of the virtually unlimited power of the British Monarch to create titles and offices.  The drafters of the Constitution therefore sought to give the President inferior powers, as evidenced by one of the specific grievances listed in paragraph 12 of the Declaration of Independence:

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”1 The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise pro-vided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” reers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); see also United States v. Maurice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.). 

The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only ap- point[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of of-fices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insid-ous and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421. (Id., pp. 3-4; emphasis added.)

Justice Thomas aptly notes the obvious, namely that when Mr. Smith was appointed to the “office” created by Mr. Garland, there was no citation to any statute and the Justice Department has not cited to any statute that actually creates such an office.  The concurring opinion therefore quotes James Madison, who warned us:

 “If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. (Trump v. United States, p. 6.)

The man appointed by executive branch fiat

Finally, as to the very man appointed to the office of “special counsel” in an apparently “extra-Constitutional” manner,  a more principled man might have refused this appointment.  Indeed,  based on the insidious motivation underlying the supposed establishment of a special counsel’s “office” by Mr. Garland, it would have been quite easy for Mr. Smith to have refused this appointment on the grounds it is improperly-created under the provisions of Article II, Section II.

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NRA v. Vullo - Unanimous Supreme Court rules government may not engage in "lawfare" against free speech, limiting the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organization

The United States Supreme Court has recently issued one of the most important First Amendment cases in the last decade. (See National Rifle Association v. Vullo (May 30, 2024) no. 22-842).  In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court affirmed a state government may not seek to block the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organizations.  Your author terms this sort of conduct "lawfare" and it is readily-apparent the current regime in the State of New York will do almost anything to silence its political opponents.

When one imagines the legitimate role of a sovereign state, one does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the Bill of Rights.  Nonetheless, as Justice Sotomayer cogently explained at pages three to five, the NRA alleged the State of New York did exactly that:

Around that time, [the former superintendent of the New York Department of Finan- cial Services, or NFS] Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” Id., at 221, ¶67. She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York. Id., at 199, ¶21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21; accord, id., at 223, ¶69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).1 Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.” Ibid., ¶69.

On April 19, 2018, Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id., at 247, 250. 

In the Guidance Letters’ final paragraph, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organzations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251.2

The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters’ statements. The press release included a quote from Vullo “ ‘urg[ing] all insurance companies and banks doing business in New York’” to join those “‘that have already discontinued their arrangements with the NRA.’ ” Id., at 244. The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’ ” Id., at 213, Complaint ¶51.

The State of New York therefore targetd "affinity products" in the insurance marketplace and therefore sought to discourage these businesses from doing lawful business with the NRA in order to "weaken" it.  

The NRA sued Vullo in Federal District court.  While the case survived a motion to dismiss in District Court, it did not survive a review of this ruling in the Second Circuit, which held the NRA could not state a First Amendment claim.  

With the assistance of the American Civil Liberties Union, the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA. Specifically, while Vullo could criticize the NRA, she "could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy." (Id., p. 8.)

As the unanimous court stated clearly, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power:

To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. See 372 U. S., at 67–68. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.

Consider first Vullo’s authority, which serves as a backdrop to the NRA’s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official’s communication as coercive. See id., at 66–67. Generally speaking, the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One would reasonably expect that organization to react differently if the letter came from, say, the U. S. Attorney for the Southern District of New York than if it came from an out-of-state school board.

As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. See N. Y. Fin. Servs. Law Ann. §§202, 301. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties. (Id., pp. 12-13.)

The suit will therefore be remanded to the United States District Court for the Northern District of New York for further proceedings.

Concurrences

Justice Brown Jackson wrote separately to stress her view that while governmental coercion can implicate the First Amendment, such coercion is not always tantamount to a violation of freedom of speech and other First Amendment rights and that one must analyze whether the coercion does in fact violate a party's right to freedom of speech.  

Justice Gorsuch also wrote separately and posited that while the majority opinions provided "guideposts," there may indeed be a violation of the First Amendment whether or not any guideposts are found.  In other words, the ultimate test is whether the offending action "could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech.” (Id., p. 25.)

Analysis 

It is difficult to imagine how Judges Pooler, Chin, and Carney of the Second Circuit could have come to a more wrong decision.  Indeed, the Solicitor General of the United States (a Biden appointee, no less) filed an amicus brief in support of vacating the Second Circuit's opinion. The ease with which Vullo was apparently able to intimidate a sophisticated nationwide entity such as Chubb into terminating a program providing liability insurance to gun owners, a result that no reasonable person could argue would be beneficial to victims of gun violence, is also disheartening.

There should be no doubt, then, that the actions of New York's government, currently led by Governor Kathy Hochel (who could have put a stop to this anti-liberty nonsense by settling this action) were both unconstitutional and blatantly authoritarian.  So much so, in fact, that this should cause grave concern for anyone who lives in, does business with, or even visits New York.  One can imagine such Stalinist abusive tactics being used against, for example, the Sierra Club if they were to lobby against fracking or oil drilling and another state government were to find these actions against the interests of its citizens.  It would be equally odious if such a government would press banks and other financial institutions to cease doing business with the Sierra Club notwithstanding the fact their actions are protected activity under the First Amendment.

Finally, the fact a decision was issued in a timely fashion in a case of such import indicates the Court can move quickly where the outcome is determined by settled Constitutional principles.  It is sad to say that this is not always the case, as the Court often appears to be bogged down by dissenting opinions in cases decided by the vote of one or two justices where the dissenting justices, for want of a better word, simply refuse to acknowledge the clear language of our nation's founding document.

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