Not to be petty - but its not a "technicality," not.even.close
The Constitution has a clear definition of "agents" of the Federal Gov't and their appointment process. All other Gov't attornies follow this - Why not Merrick Garland with Jack Smith? Because the Senate would never had agreed and his corrupt headline-generating machine would have stalled from the start. Its a huge Constitutional issue.
It literally is NO different from Trump in 2017, appointing me, a private citizen, to go and prosecute Barack Obama, except that DOJ is paying Smith's expenses.
Everyone is DC is so busy sucking-up to the collected power of the unelected deep-state and America's KGB (the DOJ/FBI) it took months for anyone (Ed Meese finally) to even ask this question.
I just want to say that I think PGR88 would have done a fine job prosecuting Berry.