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To summarize. An officer cannot be appointed by the executive (president or his disignates) unless congress passes a law authorizing the position(s). Congress

To summarize. An officer cannot be appointed by the executive (president or his disignates) unless congress passes a law authorizing the position(s). Congress passed no such law to allow this special prosecutor to be appointed. Absent that, the only other way to appoint someone is to get senate confirmation via the appointments clause. The president didn't seek this confirmation for the special prosecutor. This is a very important check on the president's power. The current president basically hired a private attorney without authorization and sic'd him on his political enemy. EDIT: Those of you downvoting - why are you against the rule of law? The law on this is very clear, and this issue about this special prosecutor has been known for years.

bediger4000 2y ago
Are you kidding?
ceejayoz 2y ago
No one seemed to have an issue with it a couple years ago. https://en.wikipedia.org/wiki/Durham_special_counsel_investigation https://en.wikipedia.org/wiki/Durham_special_counsel_investi... There's a reason Thomas's concurrence is separate from the majority opinion; even the other five conservative justices didn't support the theory.
- tomohawk 2y ago
  I think if you look more deeply at the history of special counsels, you will see that this issue has been raised before and dealt with differently in different cases. Besides which, a litigant would need to raise this issue in court for it to be litigated. If this particular issue does come before SCOTUS, then we'll see how the justices rule.
  - ceejayoz 2y ago
    > If this particular issue does come before SCOTUS, then we'll see how the justices rule. We got a pretty decent preview. Thomas's concurrence pretty clearly indicates he tried to get them to sign on to the concept during deliberation; its separate existence also indicates he was unsuccessful at convincing them. I don't see much in https://en.wikipedia.org/wiki/Special_counsel#Current_regulations https://en.wikipedia.org/wiki/Special_counsel#Current_regula... that supports your claim that this has been adjudicated any time recently. Care to highlight a case?
- raincom 2y ago
  Five conservative justices were being 'conservative' in not joining Thomas' concurrence, as that issue was not before the court. The moment this issue comes before SCOTUS, you can expect more concurrences from these five conservative justices.
- skissane 2y ago
  > There's a reason Thomas's concurrence is separate from the majority opinion; even the other five conservative justices didn't support the theory. You wrongly assume the only reason they didn’t concur with Thomas’ arguments is because they think they are incorrect. There is another possible explanation: whatever they may think of Thomas’ arguments, they may have thought it better to leave discussion of that issue out of the majority opinion, given it wasn’t part of the questions presented for them to decide in the immediate case, and it wasn’t fully ventilated in the briefs and arguments and the record below. It isn’t impossible, despite not joining him in his concurrence, some or all of them might end up agreeing with him if they were presented with a case directly on that topic (which may indeed now happen)
JumpCrisscross 2y ago
> why are you against the rule of law? Does the AG need Congressional approval every time he hires a secretary? There are two sets of principles of the rule of law in conflict [1]. On one hand, you are correct in Cannon’s argument being supported by “consistency (no contradictory laws)” and the “protection of individual rights.” But in throwing out precedent she discards “consistency (no contradictory laws)” and “certainty (certainty of application for a given situation).” Where the balance tips for me is in her violating the most core tenet of the rule of law, that no man is above the law, something she has been dinged for in the past [2]. [1] https://en.m.wikipedia.org/wiki/Rule_of_law https://en.m.wikipedia.org/wiki/Rule_of_law [2] https://s3.documentcloud.org/documents/23323385/trump-ca11-2022-12-01.pdf https://s3.documentcloud.org/documents/23323385/trump-ca11-2...
- tomohawk 2y ago
  Of course not - congress has passed a law creating the DoJ, etc. That is not what is going on here. An attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ. It hasn't been authorized by any law.
  - JumpCrisscross 2y ago
    > attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ What powers does a Special Counsel have that any DoJ prosecutor doesn’t that injure the defendant? The defining characteristic of a special prosecutor is they can’t be fired—that injures the President and AG.
  - tomohawk 2y ago
    EDIT: since you edited your post after I responded, I'll try to respond to your edit. It is Biden who believes he's above the law. He has consistently bragged about it, for example, in flouting decisions saying he has no authority to forgive student loans. It is Biden who is not following the law here. I'm sure this will be appealed, and maybe in a few years, if we're lucky, the law will be made clearer.

bediger4000 2y ago

Are you kidding?

ceejayoz 2y ago

No one seemed to have an issue with it a couple years ago. https://en.wikipedia.org/wiki/Durham_special_counsel_investigation https://en.wikipedia.org/wiki/Durham_special_counsel_investi... There's a reason Thomas's concurrence is separate from the majority opinion; even the other five conservative justices didn't support the theory.

tomohawk 2y ago
I think if you look more deeply at the history of special counsels, you will see that this issue has been raised before and dealt with differently in different cases. Besides which, a litigant would need to raise this issue in court for it to be litigated. If this particular issue does come before SCOTUS, then we'll see how the justices rule.
- ceejayoz 2y ago
  > If this particular issue does come before SCOTUS, then we'll see how the justices rule. We got a pretty decent preview. Thomas's concurrence pretty clearly indicates he tried to get them to sign on to the concept during deliberation; its separate existence also indicates he was unsuccessful at convincing them. I don't see much in https://en.wikipedia.org/wiki/Special_counsel#Current_regulations https://en.wikipedia.org/wiki/Special_counsel#Current_regula... that supports your claim that this has been adjudicated any time recently. Care to highlight a case?
raincom 2y ago
Five conservative justices were being 'conservative' in not joining Thomas' concurrence, as that issue was not before the court. The moment this issue comes before SCOTUS, you can expect more concurrences from these five conservative justices.
skissane 2y ago
> There's a reason Thomas's concurrence is separate from the majority opinion; even the other five conservative justices didn't support the theory. You wrongly assume the only reason they didn’t concur with Thomas’ arguments is because they think they are incorrect. There is another possible explanation: whatever they may think of Thomas’ arguments, they may have thought it better to leave discussion of that issue out of the majority opinion, given it wasn’t part of the questions presented for them to decide in the immediate case, and it wasn’t fully ventilated in the briefs and arguments and the record below. It isn’t impossible, despite not joining him in his concurrence, some or all of them might end up agreeing with him if they were presented with a case directly on that topic (which may indeed now happen)

JumpCrisscross 2y ago

> why are you against the rule of law? Does the AG need Congressional approval every time he hires a secretary? There are two sets of principles of the rule of law in conflict [1]. On one hand, you are correct in Cannon’s argument being supported by “consistency (no contradictory laws)” and the “protection of individual rights.” But in throwing out precedent she discards “consistency (no contradictory laws)” and “certainty (certainty of application for a given situation).” Where the balance tips for me is in her violating the most core tenet of the rule of law, that no man is above the law, something she has been dinged for in the past [2]. [1] https://en.m.wikipedia.org/wiki/Rule_of_law https://en.m.wikipedia.org/wiki/Rule_of_law [2] https://s3.documentcloud.org/documents/23323385/trump-ca11-2022-12-01.pdf https://s3.documentcloud.org/documents/23323385/trump-ca11-2...

tomohawk 2y ago
Of course not - congress has passed a law creating the DoJ, etc. That is not what is going on here. An attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ. It hasn't been authorized by any law.
- JumpCrisscross 2y ago
  > attorney has been appointed with extraordinary powers to a position that is not created as part of the DoJ What powers does a Special Counsel have that any DoJ prosecutor doesn’t that injure the defendant? The defining characteristic of a special prosecutor is they can’t be fired—that injures the President and AG.
- tomohawk 2y ago
  EDIT: since you edited your post after I responded, I'll try to respond to your edit. It is Biden who believes he's above the law. He has consistently bragged about it, for example, in flouting decisions saying he has no authority to forgive student loans. It is Biden who is not following the law here. I'm sure this will be appealed, and maybe in a few years, if we're lucky, the law will be made clearer.