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> Does the AG need Congressional approval every time he hires a secretary? There is a legal distinction between an “officer of the United States” and an “emplo

> Does the AG need Congressional approval every time he hires a secretary? There is a legal distinction between an “officer of the United States” and an “employee of the United States”. An officer has the power to make significant legally binding decisions in the name of the United States government. A secretary is an employee: nobody is arguing the Attorney-General needs specific authorisation from Congress to hire a secretary (assuming their salary fits within the appropriated personnel budget, etc). But a special counsel is clearly not a mere employee, a special counsel is an officer - deciding to initiate and advance a federal criminal prosecution is a significant legal decision. Hence, the argument is that the special counsel, as an officer, needs to be authorised by Congress, either by statute, or as a Senate-confirmed appointment. Whether or not that argument is correct, the example you raise of hiring a secretary is irrelevant to it.

ceejayoz 2y ago
> There is a legal distinction between an “officer of the United States” and an “employee of the United States”. There's another legal distinction, though; "principal" and "inferior" officers. https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/overview-of-principal-and-inferior-officers https://www.law.cornell.edu/constitution-conan/article-2/sec... Unfortunately, the Founding Fathers never really explained what the exact difference is.
- skissane 2y ago
  Correct. But the Appointments Clause says “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” - which says that to appoint an inferior Officer, you need statutory authorisation. And this is part of the crux of the dispute - there used to be an Act of Congress authorising the appointment of special counsels, but it expired in 1999 and was not renewed. Supporters of Judge Cannon’s decision - not just Trump’s own lawyers, also conservative legal scholars such as professor Josh Blackman [0] - argue that with the expiry of that statute, there is no longer any Congressional authorisation for appointment of special counsel as “inferior officers”, and hence Jack Smith’s appointment is unconstitutional. Conversely, Smith (and the DOJ and A-G) argue that statutory authority can be found in various other provisions-I know one thing they’ve pointed to is a few “left-over” cross references in the US Code to the now expired independent counsel statute. The crux of the dispute is whether those “left-over” provisions are sufficient to meet the constitutional burden [0] https://reason.com/volokh/2024/07/16/new-in-harvard-jlpp-per-curiam-what-we-did-and-did-not-argue-in-united-states-v-trump/ https://reason.com/volokh/2024/07/16/new-in-harvard-jlpp-per...

ceejayoz 2y ago

> There is a legal distinction between an “officer of the United States” and an “employee of the United States”. There's another legal distinction, though; "principal" and "inferior" officers. https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-2/overview-of-principal-and-inferior-officers https://www.law.cornell.edu/constitution-conan/article-2/sec... Unfortunately, the Founding Fathers never really explained what the exact difference is.

skissane 2y ago
Correct. But the Appointments Clause says “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” - which says that to appoint an inferior Officer, you need statutory authorisation. And this is part of the crux of the dispute - there used to be an Act of Congress authorising the appointment of special counsels, but it expired in 1999 and was not renewed. Supporters of Judge Cannon’s decision - not just Trump’s own lawyers, also conservative legal scholars such as professor Josh Blackman [0] - argue that with the expiry of that statute, there is no longer any Congressional authorisation for appointment of special counsel as “inferior officers”, and hence Jack Smith’s appointment is unconstitutional. Conversely, Smith (and the DOJ and A-G) argue that statutory authority can be found in various other provisions-I know one thing they’ve pointed to is a few “left-over” cross references in the US Code to the now expired independent counsel statute. The crux of the dispute is whether those “left-over” provisions are sufficient to meet the constitutional burden [0] https://reason.com/volokh/2024/07/16/new-in-harvard-jlpp-per-curiam-what-we-did-and-did-not-argue-in-united-states-v-trump/ https://reason.com/volokh/2024/07/16/new-in-harvard-jlpp-per...