A legal scholar and public interest legal organization have teamed up to challenge the classified documents indictment against Donald Trump. The scholar and organization filed a March 21 brief arguing that the delegation of authority to Special Counsel Jack Smith is invalid, rendering the indictment invalid, as well.

Prof. Seth Barrett Tillman and the Landmark Legal Foundation’s brief argue Smith’s appointment is invalid because Smith exercises too much independent authority for his position as an employee.

Smith has too much independent authority

Smith’s appointment furnishes him with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”

Tillman’s brief argues this delegation of authority goes too far because only “Officers of the United States” can hold such far-reaching authority and power and Smith is a “mere ’employee’” of the United States.

According to Tillman’s brief, an employee like Smith cannot exercise the “significant authority” of a U.S. Attorney without the supervision of an Officer of the United States.

“Employees tend to carry out routine administrative tasks,” Tillman told Legal Insurrection, but “the ability to investigate, indict, and try independently” are powers far beyond “routine administrative tasks.”

While employees can try people, their independence is limited, according to Tillman.

“Assistant U.S. Attorneys, as employees, try people all the time, but they do so under the supervision of an Officer of the United States, the appointed U.S. Attorney.”

Smith’s transitory position isn’t an “office”

Tillman argues Smith is not an Officer of the United States because such an officer’s office must be continuous, and Smith’s position only exists “to resolve a particular controversy.”

“An ‘office’ in the constitutional sense is a continuous position, like the position of U.S. Attorney,” Tillman told Legal Insurrection. “Even though different people can occupy the same U.S. Attorney position in succession, the position of U.S. Attorney is permanent. Smith’s position as special counsel, however, is a one-off position designed to address one issue and then cease to exist.”

Smith is not an Officer of the United States because he does not hold an office in the constitutional sense, which must be continuous in operation. Instead, Smith is a “mere ’employee’” of the United States holding a non-continuous position.

“One issue with Smith’s appointment is that Congress created no special counsel office, yet Smith exercises ‘significant authority’ that only an ‘Officer of the United States’ can validly exercise,” Tillman told Legal Insurrection.

The government’s response is “pro forma,” erroneous

The government filed a short response to Tillman’s brief on April 4. Tillman described the government’s response as “pretty pro forma” and making “a common error by confusing continuous duties with a continuous office. The special counsel position has continuous duties but not a continuous office. The special counsel position terminates once Smith has completed his duties.”

Tillman’s brief:

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