1. All officers of the United States, principal and inferior, must hold permanent or continuing positions. Prior to Mr. Smith's "appointment" as Special Counsel, he was not already holding another "officer of the United States" position. Mr. Smith's position as Special Counsel was not a secondment or transfer from some other post in the government. Unlike other United States Attorneys who have been appointed as special counsels, Mr. Smith was not already a senate-confirmed principal "officer of the United States" to which new duties were merely added.
2. More importantly, the Special Counsel's position is not a permanent or continuing position. It is a temporary or ad hoc position. When that single "case" is over, the Special Counsel's position ceases-as such, the Special Counsel's position cannot be characterized as a permanent or continuing one. Under Lucia v. SEC and other Supreme Court binding precedent, such a temporary or ad hoc position cannot be characterized either as a principal officer of the United States or as an inferior officer of the United States. Such a temporary or ad hoc position is, at most, a mere employee of the United States. See Buckley, 424 U.S. at 126 n.162. And as, at most, a mere employee of the United States, such a position cannot be endowed with the powers that the Special Counsel exercises. The Special Counsel only argues that his position is properly characterized as an inferior officer of the United States. However, post-Lucia, the Special Counsel's legal position is a non-starter.
3. Finally, the primary purpose of the Special Counsel regulations, which were modeled on the Independent Counsel statute, was to avoid conflicts of interest when the Executive Branch investigates itself. But here, Attorney General Garland appointed Mr. Smith not to investigate someone connected to the United States Department of Justice, the President, or the Biden Administration—as was the case with Hunter Biden—but to investigate the Biden Administration's leading political opponent. Mr. Smith's appointment was not made to eliminate any internal conflict of interest. Quite the opposite. Mr. Smith was appointed to shield the Attorney General, the Department of Justice, the President, and the Biden administration, from the political accountability associated with investigating and prosecuting a political rival. These dynamics further demonstrate why Smith's appointment is inconsistent with the separation of powers and political accountability. The appointment of a special counsel in the face of internal conflicts makes the government more accountable to the American people. The appointment of a special counsel to investigate and prosecute a political rival makes the government less accountable to the American people.
Is that for the hearing she scheduled for June 21?