On Cannon and Special Counsel

A quick reference guide

I have looked quickly over Cannon’s “decision” and the DC Circuit case that directly opposes it. As far as I can tell, Cannon “refutes” the DC Circuit by basically saying that anyone Garland delegates anything to has to be an “existing” member of the AG’s office. So it becomes a chicken-egg question: when you hire special counsel do you hire him first and then appoint him or appoint him and then hire him?

If as a CEO you decide to appoint someone Comptroller, do you hire her first and then appoint her, or do you appoint her and then hire her?

In any event, please note that the prosecution of Hunter Biden was by an unconstitutional special counsel under Cannon’s analysis.

The cases are here

CANNON

DC Circuit (This had to do with whether someone could defy a Mueller subpoena)

The Federal Statutes at issue (in each case, emphasis added)

28 U.S. Code § 509 - Functions of the Attorney General

All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions—

(1)vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice;

(2)of the Federal Prison Industries, Inc.; and

(3)of the Board of Directors and officers of the Federal Prison Industries, Inc.

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28 U.S. Code § 510 - Delegation of authority

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

[Note: as I understand it the Regs have a procedure for doing that. I haven’t read them]

28 U.S. Code § 515 - Authority for legal proceedings; commission, oath, and salary for special attorneys

(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.

[query: if you haven’t hired someone, do you fix the salary of the person you didn’t hire?]

28 U.S. Code § 533 - Investigative and other officials; appointment

The Attorney General may appoint officials—

(1)to detect and prosecute crimes against the United States;

(2)to assist in the protection of the person of the President; and [1]

(3)to assist in the protection of the person of the Attorney General.[2]

(4)to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General.

This section does not limit the authority of departments and agencies to investigate crimes against the United States when investigative jurisdiction has been assigned by law to such departments and agencies.

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I can’t actually see why Garland can’t just say “OK, we are substituting in Assistant AG X, who we hired 10 minutes ago and is thus existing”

Wiser heads than mine will be analyzing all this. Look especially for analyses by The Status Quo, Law Dork, and and One First. I’ll see if they make me change my general impression. But you don’t have to do your own research on what the statutes SAY because I just did it for you.