No. 24-12311-J

In theUnited States Court of Appeals
For the Eleventh Circuit____________________UNITED STATES OF AMERICA,
Appellant,
V.

DONALD J. TRUMP, WALTINE NAUTA,
and CARLOS DE OLIVEIRADefendants-Appellees.
____________________ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA
District Court No. 9:23-CR-80101-AMC-1 (Cannon, J.)______________

BRIEF FOR THE UNITED STATES______________

J.P. COONEY
Deputy Special Counsel

JACK SMITH
Special Counsel

JAY I. BRATTMICHAEL R. DREEBENRAYMOND N. HULSER
Counselors to the Special Counsel

DAVID V. HARBACH II
JOHN M. PELLETTIERICECIL W. VANDEVENDERJAMES I. PEARCE
Assistant Special Counsels
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Rm. B-206
Washington, D.C. 20530

United States v. Donald J. Trump, Waltine Nauta, and Carlos De OliveiraNo. 24-12311-J
CERTIFICATE OF INTERESTED PERSONS
Pursuant to Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1 and 26.1-2, theundersigned hereby certifies that the following is a list of persons and entities
who have an interest in the outcome of this case:1.

Advance Publications, Inc.

2.

Alonso, Cristina

3.

America First Legal Foundation

4.

American Broadcasting Companies, Inc., d/b/a ABC News

5.

Ayer, Donald

6.

Blackman, Joshua

7.

Blanche, Todd

8.

Bloomberg, L.P.

9.

Bove, Emil10.

Bowman, Chad

11.

Bratt, Jay

12.

Cable News Network, Inc.

13.

Calabresi, Steven

14.

Caldera, Louis

15.

Cannon, Hon. Aileen
C-1 of 7

16.

Cate, Matthew

17.

CBS Broadcasting, Inc. o/b/o CBS News

18.

Citizens United

19.

Citizens United Foundation

20.

CMG Media Corporation

21.

Coleman, Tom

22.

Conway, George

23.

Cooney, J.P.

24.

Cox Enterprises, Inc. (COX) d/b/a The Atlanta JournalConstitution

25.

Dadan, Sasha

26.

De Oliveira, Carlos

27.

Dow Jones & Company, Inc., publisher of The Wall Street Journal

28.

Dreeben, Michael

29.

Edelstein, Julie

30.

Fields, Lazaro

31.

Fitzgerald, Patrick

32.

Fort Myers Broadcasting Company

33.

Gerson, Stuart

34.

Goodman, Hon. Jonathan

35.

Gray Media Group, Inc. (GTN)
C-2 of 7

36.

Guardian News & Media Limited

37.

Harbach, David

38.

Hulser, Raymond

39.

Insider, Inc.

40.

Irving, John

41.

Kise, Christopher

42.

Lacovara, Philip Allen

43.

Landmark Legal Foundation

44.

Lawson, Gary45.

Los Angeles Times Communications LLC, publisher of The Los
Angeles Times

46.

Maynard, Hon. Shaniek Mills

47.

McKay, John

48.

McNamara, Anne

49.

Meese, Edwin

50.

Mishkin, Maxwell51.

Mukasey, Hon. Michael B.

52.

Murrell, Larry Donald

53.

National Cable Satellite Corporation d/b/a C-SPAN

54.

National Public Radio, Inc.

55.

Nauta, Waltine
C-3 of 7

56.

NBCUniversal Media, LLC d/b/a NBC News, a subsidiary of
Comcast Corporation (CMCSA)

57.

Orlando Sentinel Media Group, publisher of the Orlando Sentinel

58.

Pearce, James

59.

Pellettieri, John

60.

POLITICO LLC

61.

Potter, Trevor

62.

Radio Television Digital News Association

63.

Raul, Alan Charles

64.

Reinhart, Hon. Bruce E.

65.

Reuters News & Media, Inc.

66.

Russell, Lauren

67.

Salario, Samuel

68.

Sasso, Michael

69.

Schaerr, Gene

70.

Seligman, Matthew

71.

Smith, Abbe

72.

Smith, Fern

73.

Smith, Jack74.

State Democracy Defenders Action

C-4 of 7

75.

Sun-Sentinel Company, LLC, publisher of the South Florida Sun
Sentinel

76.

TEGNA, Inc. (TGNA)

77.

Telemundo Network Group, LLC d/b/a Noticias Telemundo

78.

Thakur, Michael

79.

The Associated Press

80.

The E.W. Scripps Company (SSP)81.

The McClatchy Company, LLC (MNI) d/b/a the Miami Herald

82.

The New York Times Company (NYT)83.

The Palm Beach Post and USA TODAY, publications operated bysubsidiaries of Gannett Co., Inc. (GCI)84.

Thompson, Larry

85.

Tillman, Seth Barrett

86.

Tobin, Charles

87.

Torres, Hon. Edwin

88.

Trent, Edward H.

89.

Tribe, Laurence

90.

Troye, Olivia

91.

Trump, Donald J.

92.

Trusty, James

93.

Twardy, Stanley

C-5 of 7

94.

United States of America

95.

Univision Networks & Studios, Inc.

96.

VanDevender, Cecil

97.

Weiss, Stephen

98.

Weld, William

99.

Wharton, Kendra

100. Whitman, Christine Todd
101. Woodward, Stanley
102. WP Company LLC d/b/a The Washington Post
103. WPLG, Inc.

C-6 of 7

Respectfully submitted,
JACK SMITH
Special Counsel
By:/s/ James I. Pearce
JAMES I. PEARCE
Assistant Special Counsel
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

C-7 of 7

STATEMENT REGARDING ORAL ARGUMENTThe United States believes that oral argument would assist the Court’s
decisional process in this case of significant public importance.

iTABLE OF CONTENTSCERTIFICATE OF INTERESTED PERSONS ....................................... C-1
STATEMENT REGARDING ORAL ARGUMENT.................................... i
TABLE OF CONTENTS ............................................................................ ii
TABLE OF AUTHORITIES ...................................................................... iv
INTRODUCTION ...................................................................................... 1
JURISDICTIONAL STATEMENT............................................................. 2
STATEMENT OF THE ISSUES ................................................................. 2
STATEMENT OF THE CASE .................................................................... 2
I.

Course of Proceedings and Disposition Below............................. 2

II.

Statement of the Facts ................................................................ 3

III.

A.

Legal Background ............................................................. 3

B.

Appointment and Funding of the Special Counsel .............. 5C.

The District Court’s Dismissal Order ................................. 6Standard of Review.................................................................... 7

SUMMARY OF ARGUMENT ................................................................... 8
ARGUMENT ........................................................................................... 13I.

The Attorney General Possessed the Statutory Authority toAppoint the Special Counsel .................................................... 13A.

The Supreme Court’s Decision in United States v. Nixon
Establishes the Attorney General’s Appointment
Authority ....................................................................... 14

B.

Statutory Analysis Confirms that Nixon Is Correct ............ 20
ii

C.

II.

1.

Section 515............................................................ 20

2.

Section 533............................................................ 29

3.

Sections 509 and 510 ............................................. 33

The Long History of Appointments of Special
Counsels Reflects the Attorney General’s Authority to
Make the Appointment Here ........................................... 42

The Special Counsel Was Properly Funded............................... 57

CONCLUSION......................................................................................... 57
CERTIFICATE OF COMPLIANCE ......................................................... 59
CERTIFICATE OF SERVICE .................................................................. 60

iii

TABLE OF AUTHORITIESCases
Al Bahlul v. United States,
967 F.3d 858 (D.C. Cir. 2020) ................................................................ 40
Beecham v. United States,
511 U.S. 368 (1994) ............................................................................... 31
Belt v. United States,
73 F.2d 888 (5th Cir. 1934) .................................................................... 45
Buckley v. Valeo,
424 U.S. 1 (1976)................................................................................... 30
C.I.R. v. Idaho Power Co.,
418 U.S. 1 (1974)................................................................................... 17
Consumer Fin. Protection Bureau v. Comty. Fin. Services Ass’n of America,
Ltd.,
601 U.S. 416 (2024) ................................................................................. 5
Corner Post, Inc. v. Bd. of Governors of the Fed. Reserve Sys.,
144 S. Ct. 2440 (2024)............................................................................ 17
Dep’t of Transp. v. Ass’n of Am. R.R.,
575 U.S. 43 (2015) ................................................................................. 21
Edmond v. United States,
520 U.S. 651 (1997) .......................................................................... 41, 42
Ewert v. Bluejacket,
259 U.S. 129 (1922) ............................................................................... 45
Fleming v. Mohawk Wrecking & Lumber Co.,
331 U.S. 111 (1947) ............................................................................... 38
Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222 (1957) .......................................................................... 25, 28iv

Hale v. United States,
25 F.2d 430 (8th Cir. 1928) .................................................................... 45
Henson v. Santander Consumer USA Inc.,
582 U.S. 79 (2017) ................................................................................. 26
In re Grand Jury Investigation,
315 F. Supp. 3d 602 (D.D.C. 2018) ............................................. 17, 30, 33
In re Grand Jury Investigation,
916 F.3d 1047 (D.C. Cir. 2019) ................................................. 8, 9, 17, 19
In re Persico,522 F.2d 41 (2d Cir. 1975) ................................................................ 44, 45
In re Sealed Case,
829 F.2d 50 (D.C. Cir. 1987) ............................................................. 17, 48
Lucia v. S.E.C.,
585 U.S. 237 (2018)..................................................................... 30, 34, 38
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) .................................................................. 21
May v. United States,
236 F. 495 (8th Cir. 1916) ...................................................................... 45
Morrison v. Olson,
487 U.S. 654 (1988) .......................................................................... 30, 48
Ortiz v. United States,
585 U.S. 427 (2018) ............................................................................... 30
Pa. Dep’t of Corr. v. Yeskey,
524 U.S. 206 (1998) ............................................................................... 32
Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of Health & Hum. Servs.,
80 F.3d 796 (3d Cir. 1996) ..................................................................... 41
Rudolph v. United States,
92 F.4th 1038 (11th Cir. 2024)................................................................ 17v

Russell Motor Car Co. v. United States,
261 U.S. 514 (1923) ............................................................................... 31
S. D. Warren Co. v. Maine Bd. of Env’t Prot.,
547 U.S. 370 (2006) ............................................................................... 31
Schwab v. Crosby,
451 F.3d 1308 (11th Cir. 2006) .......................................................... 14, 19
Shushan v. United States,
117 F.2d 110 (5th Cir. 1941) .................................................................. 45
Six Companies of Cal. v. Joint Highway Dist. No. 13 of Cal.,
311 U.S. 180 (1940) ............................................................................... 18
State of Russia v. Nat’l City Bank of N.Y.,
69 F.2d 44 (2d Cir. 1934) ....................................................................... 45
United States v. Amazon Indus. Chem. Corp.,
55 F.2d 254 (D. Md. 1931) ..................................................................... 45
United States v. Cohen,
273 F. 620 (D. Mass. 1921) .................................................................... 45
United States v. Concord Mgmt. & Consulting LLC,
317 F. Supp. 3d 598 (D.D.C. 2018) ............................................... 9, 17, 19
United States v. Crosthwaite,
168 U.S. 375 (1897) ............................................................................... 43
United States v. Eaton,
169 U.S. 331 (1898) ............................................................................... 30
United States v. Files,
63 F.4th 920 (11th Cir. 2023) ................................................................. 17
United States v. Gillis,
938 F.3d 1181 (11th Cir. 2019) ............................................................... 17
United States v. Kaley,
579 F.3d 1246 (11th Cir. 2009) ............................................................... 19vi

United States v. Limantour,
26 F. Cas. 947 (N.D. Cal. 1858) ............................................................. 42
United States v. Martins,
288 F. 991 (D. Mass. 1923) .................................................................... 45
United States v. Milanovich,
303 F.2d 626 (4th Cir. 1962) .................................................................. 46
United States v. Morse,
292 F. 273 (S.D.N.Y. 1922) ................................................................... 45
United States v. Nixon,
418 U.S. 683 (1974) .................................................. 7, 8, 14, 15, 16, 17, 47
United States v. Powell,
81 F. Supp. 288 (E.D. Mo. 1948) ........................................................... 46
United States v. Rosenthal,
121 F. 862 (C.C. S.D.N.Y. 1903) ........................................................... 44
United States v. Sharpe,
438 F.3d 1257 (11th Cir. 2006) ................................................................. 8
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) ............................................................................... 18
United States v. Winston,
170 U.S. 522 (1898) ............................................................................... 44
Willy v. Administrative Review Bd.,
423 F.3d 483 (5th Cir. 2005) .................................................................. 40
Winslow v. F.E.R.C.,
587 F.3d 1133 (D.C. Cir. 2009) .............................................................. 14
Yaselli v. Goff,
12 F.2d 396 (2d Cir. 1926), aff’d, 275 U.S. 503 (1927) .............................. 45

vii

Statutes and Rules
U.S. Const. art. I, § 9, cl. 7 ....................................................................... 2, 5
U.S. Const. art. II, § 2, cl. 2 ........................................................2, 3, 8, 13, 31
U.S. Const. art. III, § 1 ............................................................................... 14
1 Rev. Stat. 61, tit. VIII, § 366 (1875) .......................................... 24, 26, 35, 43
5 U.S.C. § 2105 .......................................................................................... 27
5 U.S.C. § 301............................................................................................ 33
5 U.S.C. § 315 (1925-26 ed.) ....................................................................... 24
5 U.S.C. § 315 (1946 ed.) ....................................................................... 24, 28
5 U.S.C. § 315 (1952 ed.) ............................................................................ 25
5 U.S.C. § 3101 ............................................................................... 27, 33, 34
10 U.S.C. § 113 .......................................................................................... 39
15 U.S.C. § 7a............................................................................................ 37
15 U.S.C. § 7a-2 ......................................................................................... 37
15 U.S.C. § 18a .......................................................................................... 37
18 U.S.C. § 201 .......................................................................................... 30
18 U.S.C. § 793 ............................................................................................ 2
18 U.S.C. § 2516 ........................................................................................ 39
18 U.S.C. § 3231 .......................................................................................... 2
18 U.S.C. § 3731 .......................................................................................... 2
18 U.S.C. § 3742 ........................................................................................ 39viii

22 U.S.C. § 2651a ...................................................................................... 39
28 C.F.R. § 0.1........................................................................................... 36
28 C.F.R. § 600.1 ................................................................................... 4, 30
28 C.F.R. § 600.3 ....................................................................................... 51
28 C.F.R. § 602.1 ....................................................................................... 48
28 U.S.C. § 1291 .......................................................................................... 2
28 U.S.C. § 503 ................................................................................. 3, 21, 24
28 U.S.C. § 504 .......................................................................................... 38
28 U.S.C. § 504a ........................................................................................ 38
28 U.S.C. § 505 .......................................................................................... 38
28 U.S.C. § 506 .......................................................................................... 38
28 U.S.C. § 509 ............................................................. 1, 3, 12, 15, 20, 21, 33
28 U.S.C. § 509B ....................................................................................... 37
28 U.S.C. § 510 .................................................. 1, 3, 12, 15, 20, 33, 34, 36, 54
28 U.S.C. § 515 ................................... 1, 4, 9, 10, 15, 20, 21, 22, 25, 27, 50, 54
28 U.S.C. § 516 ...................................................................................... 3, 15
28 U.S.C. § 519 ..................................................................................... 10, 29
28 U.S.C. § 533 ............................................................. 1, 4, 11, 15, 20, 29, 32
28 U.S.C. § 541 .......................................................................................... 38
28 U.S.C. § 543 ..................................................................................... 10, 25
28 U.S.C. § 547 ...................................................................................... 3, 34ix

28 U.S.C. § 561 .......................................................................................... 38
31 U.S.C. § 321 .......................................................................................... 39
52 Fed. Reg. 22,439-01 (June 12, 1987) ....................................................... 48
52 Fed. Reg. 35,543-01 (Sept. 22, 1987) ...................................................... 48
64 Fed. Reg. 37,038 ..................................................................................... 4
64 Fed. Reg. 37,038 (July 9, 1999) .............................................................. 51
Act of Apr. 17, 1930, Pub. L. No. 71-133, 46 Stat. 170 ................................. 46
Act of Aug. 30, 1890, ch. 837, 26 Stat. 371 .................................................. 46
Act of Feb. 25, 1903, Pub. L. No. 57-115, 32 Stat. 854 ................................. 46
Act of July 19, 1919, Pub. L. No. 66-21, 41 Stat. 163 ................................... 46
Act of June 27, 1866, 14 Stat. 74 ................................................................. 27
Act of June 3, 1948, Pub. L. No. 80-597, 62 Stat. 305 .................................. 46
Act of Mar. 3, 1891, ch. 542, 26 Stat. 948 .................................................... 46
Act of Mar. 3, 1901, ch. 853, 31 Stat. 1133 .................................................. 46
Act of Mar. 4, 1921, Pub. L. No. 66-389, 41 Stat. 1367 ................................ 46
An Act to Establish the Department of Justice, ch. 150, § 17, 16 Stat.
162 (1870) ............................................................................. 23, 26, 35, 43
Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 .......... 47
Ethics in Government Act, 28 U.S.C. §§ 591-599 (expired) ............................ 4
Independent Counsel: In re Madison Guaranty Savings & Loan Association, 59
Fed. Reg. 5321-02 (Feb. 4, 1994) ............................................................ 49
Office of Special Counsel, 64 Fed. Reg. 37,038 (July 9, 1999) ........................ 4xOffices of Independent Counsel; General Powers and Establishment of
Independent Counsel—Iran/Contra, 52 Fed. Reg. 7270-02 (Mar. 10,
1987) .................................................................................................... 48
Pub. L No. 59-404, 34 Stat. 816 (1906)........................................................ 45
Pub. L. No. 66-338, 41 Stat. 1156 (1921) ..................................................... 32
Pub. L. No. 80-773, 62 Stat. 869 (1948).................................................. 24, 27
Pub. L. No. 81-109, 63 Stat. 203 (1949)....................................................... 35
Pub. L. No. 81-921, 64 Stat. 1261 (1950) ................................................ 36, 40
Pub. L. No. 89-554, 80 Stat. 378 (1966)....................................... 12, 32, 33, 36
Pub. L. No. 90-351, 82 Stat. 197 (1968)....................................................... 38
Pub. L. No. 100-202, tit. II, § 101(a), 101 Stat. 1329 (1987) ................. 5, 13, 56
Pub. L. No. 109-177, 120 Stat. 192 (2006) ................................................... 36
Reorganization Plan No. 2 of 1973, Pub. L. No. 93-245, 87 Stat. 1091
(1973) ................................................................................................... 38

Other Authorities
1919 Att’y Gen. Ann. Rep. ......................................................................... 36
1935 Att’y Gen. Ann. Rep. ......................................................................... 36
American Enterprise Inst. & Brookings Inst., Project on the IndependentCounsel Statute: Report and Recommendations (May 1999) ...................... 50, 51
Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to
Incumbent Officeholders, 12 Op. O.L.C. 286 (1988) .................................... 36
Att’y Gen. Order No. 155-57 (1957)............................................................ 37
Att’y Gen. Order No. 518-73 (May 25, 1973) .............................................. 46xi

Att’y Gen. Order No. 551-73 (Nov. 2, 1973) ............................................... 47
Att’y Gen. Order No. 552-73 (Nov. 5, 1973) ............................................... 47
Att’y Gen. Order No. 5-53 (1953) ............................................................... 37
Att’y Gen. Order No. 8-53 (1953) ............................................................... 37
Att’y Gen. Order No. 998-83 (1983)............................................................ 37
Black’s Law Dictionary (12th ed. 2024) ..................................................... 21, 30
Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo.
L.J. 2133 (1998) ............................................................................... 42, 48
Bryan A. Garner et al., The Law of Judicial Precedent (2016) ........................... 19
Circular No. 114, Order of the Attorney General for Division ofBusiness, Nov. 16, 1909 ......................................................................... 36
Civil-Service Bill, 17 Op. Att’y Gen. 504 (1883) ............................................. 22
Cong. Research Serv., Independent Counsel Law Expiration and the
Appointment of “Special Counsels” (2002) ................................................... 49
Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson
Davis (Cambridge Univ. Press 2017) .................................................. 42, 54
David Logan, Cong. Research Serv., Historical Uses of a Special Prosecutor:
The Administrations of Presidents Grant, Coolidge and Truman (1973) ............ 46
Death of a Noted Jurist, N.Y. Times (Mar. 7, 1892) ........................................ 43
Gregory J. Werden, Establishment of the Antitrust Division of the U.S.
Department of Justice, 92 St. John’s L. Rev. 419 (2018) .............................. 36
H. Campbell Black, A Dictionary of Law (1st ed. 1891) .................................. 21
Homer Cummings & Carl McFarland, Federal Justice (1937) ........................ 42
Jerome J. Shestack, Foreword: The Independent Counsel Act Revisited, 86
Geo. L.J. 2011 (1998) ............................................................................ 52
xii

Lincoln Steffens, The Taming of the West, Pt. II, in The American
Magazine, vol. 64 (Oct. 1907) ........................................................... 44, 54
Office of the Att’y Gen., Order No. 5559-2022, Appointment of John L.
Smith as Special Counsel (Nov. 18, 2022)................................................. 5, 6
P. Peters, The Cambridge Guide to English Usage (2004) ................................... 26
Treasury Order 101-06 ............................................................................... 40
Walter Dellinger, Creation of an Office of Investigative Agency Policies(O.L.C. Mem. Oct. 26, 1993) ................................................................. 37

Legislative Sources
125 Cong. Rec. H5534 (daily ed. Mar. 20, 1979) ......................................... 48
44 Cong. Rec. H4541 (daily ed. July 19, 1909) ............................................ 44
Cong. Globe, 41st Cong., 2d Sess. 3034-39 (Apr. 27, 1870) .......................... 43
H.R. Doc. No. 58-383 (1904) ...................................................................... 44
H.R. Doc. No. 81-504, Reorganization Plans No. 1 to 13 of 1950 (1950) ............ 35
H.R. Rep. No. 59-2901 (1906) .................................................................... 45
H.R. Rep. No. 71-229 (1930) ...................................................................... 55
H.R. Rep. No. 80-308 (1947) ...................................................................... 27
House Committee on Oversight and Reform, United States Government
Policy and Supporting Positions (2020) .................................................. 38
S. Exec. Doc. 40-13 (1867) ......................................................................... 43
S. Rep. No. 95-170 (1977) .......................................................................... 47
The Future of the Independent Counsel Act: Hearings Before the Senate Comm.
on Governmental Affairs, S. Hrg. 106-131 (1999) ............................. 48, 49, 50
xiii

INTRODUCTION
Congress has bestowed on the Attorney General, like the heads of many
Executive Departments, broad authority to structure the agency he leads to carryout the responsibilities imposed on him by law. Two statutes provide theAttorney General the specific authority to appoint special counsels to carry out
his law-enforcement missions. 28 U.S.C. §§ 515(b), 533(1). Two other statutes
confer on the Attorney General the necessary overarching authority to staff,
structure, and direct the operations of the Justice Department, which includes
the power to appoint inferior officers and assign specific matters to attorneys
such as the Special Counsel. 28 U.S.C. §§ 509, 510. Precedent and history
confirm those authorities, as do the long tradition of special-counsel
appointments by Attorneys General and Congress’s endorsement of thatpractice through appropriations and other legislation.

The district court’s

contrary view conflicts with an otherwise unbroken course of decisions,
including by the Supreme Court, that the Attorney General has such authority,and it is at odds with widespread and longstanding appointment practices in the
Department of Justice and across the government. This Court should reverse.

1

JURISDICTIONAL STATEMENT
The district court exercised jurisdiction under 18 U.S.C. § 3231 andentered its order dismissing the indictment on July 15, 2024. Dkt. 672.1 The
government filed a timely notice of appeal on July 17, 2024. Dkt. 673. This
Court has jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1.

Whether the Attorney General had statutory authority to appoint

the Special Counsel such that the appointment was consistent with the
Appointments Clause of the Constitution, art. II, § 2, cl. 2.
2.

Whether the statutes the Attorney General invoked to appoint theSpecial Counsel constitute “other law” under the appropriation for independent
counsels, such that using that source of funding for the Special Counsel was
consistent with the appropriation and the Appropriations Clause of theConstitution, art. I, § 9, cl. 7.
STATEMENT OF THE CASE
I.

Course of Proceedings and Disposition Below
A grand jury in the Southern District of Florida returned a superseding

indictment charging defendant Donald Trump with willful retention of national
defense information, in violation of 18 U.S.C. § 793(e), and charging Trump and

1“Dkt.” refers to district court docket entries.
2

two other defendants with multiple counts, including obstructing and conspiring
to obstruct an official proceeding and making false statements. Dkt. 85. The
district court dismissed the indictment. Dkt. 672.
II.

Statement of the FactsA.

Legal Background

1. The Appointments Clause of the Constitution provides that officers of
the United States shall be appointed by the President with the advice and consent
of the Senate. U.S. Const. art. II, § 2, cl. 2. But 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.” Id.
Congress has provided that the Attorney General shall be the “head of the
Department of Justice,” to be appointed by the President with the advice andconsent of the Senate. 28 U.S.C. § 503. Congress has, with three limited
exceptions not relevant here, “vested” in the Attorney General “[a]ll functionsof other officers of the Department of Justice,” id. § 509—including the power
to prosecute “all offenses against the United States,” id. § 547(1), and tosupervise “the conduct of litigation” on behalf of the United States, id. § 516—
and has empowered the Attorney General to authorize “any other officer,
employee, or agency of the Department of Justice” to perform any of thosefunctions, id. § 510. In addition, Congress has authorized the Attorney General3to commission attorneys “specially retained under authority of the Departmentof Justice” as “special assistant[s] to the Attorney General or special attorney[s]”and has provided that “any attorney specially appointed by the Attorney
General under law, may, when specifically directed by the Attorney General,
conduct any kind of legal proceeding, civil or criminal, . . . which United States
attorneys are authorized by law to conduct.” Id. § 515(a), (b). Congress has
further provided that the Attorney General “may appoint officials . . . to detectand prosecute crimes against the United States.” Id. § 533(1).
In 1999, the Attorney General issued a regulation providing an internalframework for certain special-counsel appointments. 28 C.F.R. §§ 600.1-600.10;
Office of Special Counsel, 64 Fed. Reg. 37,038 (July 9, 1999). The Special
Counsel regulation replaced the Independent Counsel regime formerly
established in Title IV of the Ethics in Government Act, 28 U.S.C. §§ 591-599(expired); see 64 Fed. Reg. 37,038. The Special Counsel regulation provides aprocedure for appointing a special counsel who exercises discretion over aparticular matter “within the context of the established procedures of the
Department,” with “ultimate responsibility for the matter and how it is handled. . . continu[ing] to rest with the Attorney General.” 64 Fed. Reg. at 37,038.
The regulation seeks “to strike a balance between independence andaccountability in certain sensitive investigations.” Id.
42. The Appropriations Clause provides that “No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law.” U.S.
Const. art. I, § 9, cl. 7. The Clause requires no “more than a law that authorizes
the disbursement of specified funds for identified purposes.” Consumer Fin.
Protection Bureau v. Cmty. Fin. Services Ass’n of America, Ltd., 601 U.S. 416, 438(2024). In 1987, Congress enacted a “permanent indefinite appropriation” to“pay all necessary expenses of investigations and prosecutions by independent
counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or otherlaw.” Pub. L. No. 100-202, tit. II, § 101(a), 101 Stat. 1329, 1329-9 (1987) (28
U.S.C. § 591 note).
B.

Appointment and Funding of the Special Counsel

On November 18, 2022, the Attorney General appointed John L. Smith
as Special Counsel “to conduct the ongoing investigation referenced anddescribed in the United States’ Response to Motion for Judicial Oversight andAdditional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC(S.D. Fla. Aug. 30, 2022).” Office of the Att’y Gen., Order No. 5559-2022,
Appointment of John L. Smith as Special Counsel, ¶ (c) (Nov. 18, 2022). The
Attorney General also authorized the Special Counsel “to conduct the ongoinginvestigation into whether any person or entity violated the law in connection
with efforts to interfere with the lawful transfer of power following the 20205

presidential election or the certification of the Electoral College vote held on or
about January 6, 2021.” Id. ¶ (b). Relying on “the authority vested in the
Attorney General, including 28 U.S.C. §§ 509, 510, 515, and 533,” the Attorney
General appointed a Special Counsel “in order to discharge [the Attorney
General’s] responsibility to provide supervision and management of the
Department of Justice, and to ensure a full and thorough investigation of” thematters entrusted to the Special Counsel. Id. (introduction). Consistent withprior practice, the Department of Justice has funded the Special Counsel throughthe permanent indefinite appropriation for “independent counsel” appointed
under a law “other” than the now-defunct Ethics in Government Act.
C.

The District Court’s Dismissal Order

Trump moved to dismiss the superseding indictment on the grounds thattheSpecialCounsel’s

appointment

violatedtheAppointments

andAppropriations Clauses of the Constitution. Dkt. 326. He argued that no statuteauthorized the Attorney General to appoint the Special Counsel and that thepermanent indefinite appropriation was not available to the Special Counsel. Id.
at 5-14.
The district court granted the motion and dismissed the superseding
indictment. Dkt. 672. The district court accepted for purposes of its decisionthat the Special Counsel was an inferior officer whose appointment Congress6

could by law vest in the Attorney General. Id. at 2. But in the district court’sview, none of the four statutes cited by the Attorney General—28 U.S.C. §§ 509,
510, 515, and 533—authorized the Special Counsel’s appointment. Id. at 23-52.
The district court recognized that the Supreme Court stated in United States v.
Nixon, 418 U.S. 683 (1974), that Congress in those four statutes had “vested” inthe Attorney General “the power to appoint subordinate officers,” including theWatergate Special Prosecutor, id. at 694, but the district court dismissed thatstatement as non-binding and unpersuasive dicta. Dkt. 672 at 54-55. The district
court therefore concluded that the Special Counsel’s appointment violated the
Appointments Clause and that the appropriate remedy was dismissal of thesuperseding indictment. Id. at 81-85. Relying on its conclusion that no statutepermitted the Special Counsel’s appointment, the district court also found that
the Special Counsel was not eligible to receive funding under the permanentindefinite appropriation because he was not validly appointed under “otherlaw,” although the court opted not to impose any remedy for that
“Appropriations Clause violation.” Id. at 87-91.
III.

Standard of Review
The district court’s dismissal order raises issues of law that are reviewed

de novo. See United States v. Sharpe, 438 F.3d 1257, 1258 (11th Cir. 2006); In re
Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019).
7

SUMMARY OF ARGUMENT
The Attorney General validly appointed the Special Counsel, who is also
properly funded. In ruling otherwise, the district court deviated from binding
Supreme Court precedent, misconstrued the statutes that authorized the Special
Counsel’s appointment, and took inadequate account of the longstanding
history of Attorney General appointments of special counsels.
I. Under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, Congress
may vest a Head of Department with the power to appoint an inferior officer.
Here, Congress has authorized the Attorney General, by law, to appoint as aninferior officer the Special Counsel.
A. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court
determined that the Attorney General had statutory authority under 28 U.S.C.
§§ 509, 510, 515, and 533 to appoint a special prosecutor comparable to theSpecial Counsel. Id. at 694-95. Apart from the district court below, every court
to consider the question has concluded that the Supreme Court’s determinationthat those statutes authorized the Attorney General to appoint the Watergate
Special Prosecutor was necessary to the decision that a justiciable controversy
existed and therefore constitutes a holding that binds lower courts. See, e.g., In
re Grand Jury Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019).

8

The district court erred when it deemed that conclusion unpersuasive
dicta.

Nixon’s statutory analysis was integral to the Court’s “ultimate

conclusion[]” and therefore “authoritative.” United States v. Concord Mgmt. &Consulting LLC, 317 F. Supp. 3d 598, 623 (D.D.C. 2018). The district court
likewise erred in reasoning that the Supreme Court had assumed the issue
without deciding. The Supreme Court regularly uses qualifying language toindicate assumed premises but included no such caveat in Nixon when discussing
the Attorney General’s authority to appoint the Special Prosecutor. Nixon
therefore binds this Court, just as it did the district court, and reversal iswarranted on that ground alone.
B. The statutes that the Supreme Court cited in Nixon—28 U.S.C. §§ 509,
510, 515, and 533—authorized the Attorney General to appoint the Special
Counsel here.
1. Section 515 consists of two subsections that, taken together, make clearthat the Attorney General may appoint a special counsel.

Section 515(b)empowers the Attorney General to “commission[]” attorneys who are “speciallyretained under authority of the Department of Justice” as “special assistant[s] to
the Attorney General” or “special attorney[s],” and who must “take the oathrequired by law.” Section 515(a) confirms that the Attorney General may vest
such “specially appointed” attorneys with the power to undertake any civil or9criminal proceedings.

Read as a whole, Section 515 thus authorizes the

Attorney General to appoint special attorneys and confirms that he can grant
them prosecutorial authority over specifically identified matters.
The district court’s contrary reasoning lacks merit. Its focus on theabsence of the word “appoint” in Section 515(b) ignores that the term “retain”
is synonymous with “appoint” as used Section 515—as the statute’s enactment
history makes clear—and that the word “appoint” appears in Section 515(a),confirming that the statute provides appointment authority. The district court’s
determination that the phrase “specially retained” in Section 515(b) is a pasttense verb that only applies to already-retained attorneys misunderstands thestatute’s grammatical construction—“retained” and “appointed” are past
participles that take their tense from the surrounding present-tense verbs—andresults in a nonsensical interpretation under which an attorney must be hired
and only then (potentially minutes later) could become “specially retained” as a
special counsel. Finally, the district court erroneously treated two provisions—
28 U.S.C. §§ 519 and 543, which together clarify that the Attorney General’s
supervision of all federal litigation encompasses U.S. Attorneys and any
attorneys assisting them—as a limit on the entirely independent authority under
Section 515 for an Attorney General to appoint a special counsel to assist him.

10

2. Congress also authorized the Attorney General to appoint special
counsels in 28 U.S.C. § 533(1), which provides that he may appoint “officials”
to “detect and prosecute crimes against the United States.” The district court
found Section 533(1) inapplicable on the theory that “official” means only
“nonofficer employee.” The ordinary meaning of the term “official,” however,naturally encompasses “officers,” and as used in Section 533(1), reaches both
employees and officers.

The court purported to draw support for its

interpretation from the noscitur a sociis canon, but that canon applies only toclarify terms that are obscure—which “official” is not—and appear among a listof other terms with a common feature. The other subsections in Section 533—
which address appointment of officials to protect high-level Executive Branch
officers and to undertake investigations on behalf of the State and JusticeDepartments—share no such common attribute, which is unsurprising given
Section 533(1)’s enactment history. Finally, the district court elevated Section
533’s title (“Investigative and other officials”) and placement within Title 28 (ina section addressing the FBI) above the provision’s plain text, in contraventionof a congressional directive not to draw any “inference of a legislative
construction” from Section 533’s location or caption. Pub. L. No. 89-554, 80
Stat. 378, 631 (1966).

11

3. Two other provisions, 28 U.S.C. §§ 509 and 510, which grant the
Attorney General broad power to operate the Department of Justice, also
authorize him to appoint the Special Counsel in this case. Those provisions,first enacted as part of the law that created the Department of Justice, authorize
the Attorney General to structure and staff the Department in order to fulfill his
law-enforcement responsibilities, and Attorneys General have long relied on
Sections 509 and 510—with Congress’s full knowledge and approval—to create
the Justice Department’s institutional infrastructure. And Congress has long
used similar provisions to authorize other department heads, such as the
Secretaries of Defense, State, Treasury, and Labor to appoint inferior officers tocarry out critical work.
C.

The long history of Attorney General appointments of special

counsels confirms the lawfulness of the Special Counsel’s appointment. From
before the creation of the Department of Justice until the modern day, Attorneys
General have repeatedly appointed special and independent counsels to handle
federal investigations, including the prosecution of Jefferson Davis, alleged
corruption in federal agencies (including the Department of Justice itself),
Watergate, and beyond. The district court erroneously disregarded this history
as “spotty” or “ad hoc,” giving undue emphasis to superficial differences in theappointment and roles of certain special and independent counsels. The district12

court’s rationale could jeopardize the longstanding operation of the JusticeDepartment and call into question hundreds of appointments throughout the
Executive Branch.
II. The Department of Justice has properly funded the Special Counsel
under a permanent indefinite appropriation that Congress enacted to “pay allnecessary expenses of investigations and prosecutions by independent counsel
appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law.”
Pub. L. No. 100-202, tit. II, § 101(a), 101 Stat. 1329, 1329-9 (1987) (28 U.S.C.
§ 591 note). The district court erroneously concluded that Sections 509, 510,
515, and 533 did not constitute “other law” that supported the Special Counsel’s
appointment.
ARGUMENTI.

The Attorney General Possessed the Statutory Authority to Appoint
the Special Counsel
The Appointments Clause requires presidential appointment and Senate

confirmation for all principal officers, but permits Congress to “vest” the power
to appoint “inferior Officers” in the President alone, courts, or a “Head[] of [a]Department[].” U.S. Const. art. II, § 2, cl. 2. As the district court recognized(Dkt. 672 at 2), the Special Counsel is an inferior officer. And he was appointed
by the Attorney General, who is the head of a department. The only question
presented here is whether Congress has vested the Attorney General, by law,13

with the power to make the appointment.

The Supreme Court squarely

answered that question in United States v. Nixon, 418 U.S. 683, 694 (1974),
holding that the Attorney General has statutory authority under 28 U.S.C.
§§ 509, 510, 515, and 533 to appoint a special prosecutor comparable to theSpecial Counsel. Id. at 694-95. Statutory text, context, and history confirm that
Nixon was correct.
A.

The Supreme Court’s Decision in United States v. Nixon
Establishes the Attorney General’s Appointment Authority“Vertical stare decisis—both in letter and in spirit—is a critical aspect ofour hierarchical Judiciary headed by ‘one supreme Court.’” Winslow v. F.E.R.C.,
587 F.3d 1133, 1135 (D.C. Cir. 2009) (quoting U.S. Const. art. III, § 1); see
Schwab v. Crosby, 451 F.3d 1308, 1325-26 (11th Cir. 2006). Where, as here, theSupreme Court has expressly addressed an issue, lower courts are bound tofollow it. The district court’s treatment of Nixon departed from that foundational
principle.
In Nixon, the Attorney General appointed a Special Prosecutor toinvestigate and prosecute offenses arising from the 1972 presidential election,
empowering the prosecutor through a regulation. 418 U.S. at 694 & n.8. Acting
under that regulation, the Special Prosecutor obtained a subpoena issued to the
President for the production of evidence, and the district court denied a motion
to quash. Id. at 687-88. In the Supreme Court, President Nixon contended that14

the case was not justiciable because it constituted only an “intra-branch dispute”
over evidence to be used in a prosecution, in which the President’s decision was“final.” Id. at 692-93. The Supreme Court rejected that contention, explainingthat the Special Prosecutor acted pursuant to a proper and legally binding
delegation of the Attorney General’s authority:
Congress has vested in the Attorney General the power to conduct
the criminal litigation of the United States Government. 28 U.S.C.
§ 516. It has also vested in him the power to appoint subordinate
officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509,
510, 515, 533. Acting pursuant to those statutes, the Attorney
General has delegated the authority to represent the United Statesin these particular matters to a Special Prosecutor with uniqueauthority and tenure.
Id. at 694; see id. at 694 n.8 (emphasizing that the Attorney General had issued
the regulation “pursuant to” his “statutory authority”). The Court therefore
held that, as long as the regulation remained in place, it bound the entire
Executive Branch and required rejection of the President’s argument that hecould override the Special Prosecutor’s subpoena. Id. at 695-96.
The district court erroneously determined (Dkt. 672 at 53-64) that Nixon’s
reliance on the cited statutory provisions as authorizing the Attorney General toappoint “subordinate officers,” such as the Special Prosecutor, was dicta. Nixon
necessarily evaluated the Attorney General’s appointment power because theSpecial Prosecutor could not assert the Attorney General’s authority “to conduct
the criminal litigation of the United States Government” and the “explicit power15

to contest the invocation of executive privilege” unless the prosecutor had been
properly appointed.

418 U.S. at 694-95.

If the Attorney General lacked

authority to appoint the Special Prosecutor, the regulation empowering thatprosecutor to represent the sovereign interests of the United States in litigation
would have had no force. The Court’s conclusion that statutory authority
supported the appointment was not merely a “prefatory, stage-setting
paragraph” that “served to tee up the case-or-controversy analysis that
followed,” Dkt. 672 at 62, but was instead central to its conclusion that “[s]olong as this regulation [conferring authority on the Special Prosecutor] is extant
it has the force of law.” Nixon, 418 U.S. at 695. That conclusion undergirded
the Court’s determination that a justiciable case existed between an“independent Special Prosecutor with his asserted need for the subpoenaed
material” and a “President with his steadfast assertion of privilege against
disclosure.” Id. at 697.
Accordingly, the Court’s determination was “a necessary antecedent todetermining whether the regulations were valid,” which in turn “was necessary
to the decision that a justiciable controversy existed.”

In re Grand Jury

Investigation, 916 F.3d 1047, 1053 (D.C. Cir. 2019); see In re Sealed Case, 829 F.2d50, 55 & n.30 (D.C. Cir. 1987) (relying on Nixon, 418 U.S. at 694-96); In re Grand
Jury Investigation, 315 F. Supp. 3d 602, 652 (D.D.C. 2018).
16

Because thatstatutory analysis was a “necessary step[]” to the Supreme Court’s “ultimate
conclusions,” it is therefore an “authoritative” holding of the Court, not dicta.
United States v. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 623(D.D.C. 2018); cf. Rudolph v. United States, 92 F.4th 1038, 1045 (11th Cir. 2024)(judicial statements that are neither a “holding” nor “necessary to the holding”
are dicta) (quoting United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019)(per curiam)); United States v. Files, 63 F.4th 920, 929 (11th Cir. 2023) (dicta
includes “legal conclusions predicated on facts that aren’t actually at issue,”“aside-like statements about irrelevant legal matters,” and “statements regarding
a legal framework that the court initially engages but ends up abandoning infavor of an alternative”).
The district court relatedly suggested that Nixon is not binding because theSupreme Court “assumed” that the relevant appointment authority existed“without deciding it.” Dkt. 672 at 54. But when the Court assumes antecedentissues, it specifically uses such qualifying language. See, e.g., Corner Post, Inc. v.
Bd. of Governors of the Fed. Reserve Sys., 144 S. Ct. 2440, 2450 n.2 (2024); C.I.R. v.
Idaho Power Co., 418 U.S. 1, 7 n.5 (1974) (same court that authored Nixon). No
such caveat appears in Nixon itself. Nixon did not rest on an assumption: it

17

“expressly address[ed]” the statutory authority for the Special Prosecutor’s
appointment. See United States v. Verdugo-Urquidez, 494 U.S. 259, 272 (1990).2
The district court’s supposition that Nixon’s appointment discussion was
dicta because the issue was not presented or contested is likewise flawed. Dkt.
672 at 59-62. Both President Nixon’s justiciability challenge and the question
presented in the Special Prosecutor’s certiorari petition (whether the President“is subject” to a subpoena issued by the Special Prosecutor, see Dkt. 672 at 60),
necessarily required the Court to determine whether the Attorney General had
a lawful basis to appoint the Special Prosecutor. See Six Companies of Cal. v. Joint
Highway Dist. No. 13 of Cal., 311 U.S. 180, 187 (1940) (a court’s “statement of theground of its decision” is not “a mere dictum”). The government expressly
argued the point and cited the same statutes that the Court cited. Brief for theUnited States, at 27-28, United States v. Nixon, Nos. 73-1766, 73-1835 (filed June
21, 1974). President Nixon’s acknowledgement of that point in his reply only
strengthens the basis for the Court’s determination. See United States v. Kaley,

The district court relied on (Dkt. 672 at 54, 56, 61, 66) the statement in
Verdugo-Urquidez that the Supreme Court “often grants certiorari to decideparticular legal issues while assuming without deciding the validity ofantecedent propositions, . . . and such assumptions—even on jurisdictional
issues—are not binding in future cases that directly raise the questions.” 494
U.S. at 272. As explained above, however, the Court in Nixon did not assume
as an antecedent proposition the Attorney General’s authority to appoint theSpecial Prosecutor.
218

579 F.3d 1246, 1253 n.10 (11th Cir. 2009). And, in any event, the distinction
between dicta and a holding does not “depend on whether the point was arguedby counsel and deliberately considered by the court, but instead on whether thesolution of the particular point was more or less necessary to determining theissues involved in the case.” See Bryan A. Garner et al., The Law of Judicial
Precedent 51 (2016).
Even if the relevant language from Nixon were dicta, the district court was
not entitled to cast aside carefully considered, unequivocal language from aunanimous Supreme Court. See Schwab, 451 F.3d at 1325-26 (“[T]here is dicta,
and then there is Supreme Court dicta.”). The Court’s statement in Nixon was“not subordinate clause, negative pregnant, devoid-of-analysis, throw-away
kind of dicta.” See id. at 1325. And labeling it as “prefatory,” see Dkt. 672 at 58,
61, 62, 63, 67, does not license a lower court to cast it aside any more thanlabeling it a “postscript” does, Schwab, 451 F.3d at 1325. Nixon’s statement
should therefore “be treated as authoritative,” even if it were deemed“technically dictum.” In re Grand Jury Investigation, 916 F.3d at 1053 (internal
quotation marks omitted); see Concord, 317 F. Supp. 3d at 623.
In sum, the district court erred in failing to treat Nixon’s conclusion—that
Congress has authorized the Attorney General to appoint special counsels—ascontrolling. That conclusion was a binding holding, or, at least, authoritative
19

dictum. Either way, Nixon conclusively defeats the defendants’ challenge to theSpecial Counsel’s appointment, as every other court to have considered the issue
has found.
B.

Statutory Analysis Confirms that Nixon Is Correct

As Nixon recognized, four statutes—28 U.S.C. §§ 509, 510, 515, and 533—
authorized the Attorney General to appoint the Special Counsel. Those statutes
provide multiple independently sufficient grounds for the Special Counsel’s
appointment.
1.

Section 515

Section 515 authorizes the Attorney General to appoint “special
attorneys” like the Special Counsel. Section 515(b) empowers the Attorney
General to “commission[]” attorneys who are “specially retained underauthority of the Department of Justice” as “special assistant[s] to the Attorney
General” or “special attorney[s].” 28 U.S.C. § 515(b). Three textual featuresconfirm that it confers appointment authority on the Attorney General. First,“specially retained under authority of the Department of Justice” necessarily means
specially retained by the Attorney General, the head of the Department ofJustice who is vested with all its functions and powers. See 28 U.S.C. §§ 503,
509. Second, the power to issue a commission reflects that an appointment has
been made: the commission is the “warrant or authority . . . issuing from the20

government . . . empowering a person or persons named to do certain acts, or to
exercise jurisdiction, or to perform the duties and exercise the authority of an
office.” H. Campbell Black, A Dictionary of Law 226 (1st ed. 1891); see also Black’s
Law Dictionary (12th ed. 2024) (similar); Dep’t of Transp. v. Ass’n of Am. R.R., 575
U.S. 43, 58 (2015) (Alito, J., concurring) (“to be an officer, the person shouldhave sworn an oath and possess a commission”). As Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 157 (1803), recognized, “the constitutional power of
appointment has been exercised . . . when the last act, required from the person
possessing the power, has been performed. This last act is the signature of thecommission.” Third, specially retained attorneys must “take the oath requiredby law,” 28 U.S.C. § 515(b)—a requirement associated with a new appointment.
Section 515(b) thus authorizes the Attorney General to appoint special attorneys
by retaining them, having them take the oath of office, and issuing a commissionthat vests them with authority to assist the Attorney General in fulfilling his
statutory obligations. In turn, Section 515(a) confirms that the Attorney Generalcan “specially appoint[]” attorneys “under law” and “specifically direct[]” thatthey exercise all criminal (and civil) powers possessed by United States
Attorneys. 28 U.S.C. § 515(a). Read as a whole, Section 515 thus authorizes
the Attorney General to appoint special attorneys and confirms that he can grant21

them prosecutorial authority over specifically identified matters—precisely therole of the Special Counsel.
The district court, however, read Section 515(b) as nothing more than a“logistics-oriented statute” providing “technical and procedural content” to“already-‘retained’ ‘special attorneys’ or ‘special assistants’ within DOJ.” Dkt.
672 at 26. That conclusion rested on three flawed rationales.
a.

First, the district court erroneously attached significance to Section

515(b)’s use of the word “retain[]” rather than “appoint.” Dkt. 672 at 27-29.
But the terms “retain” and “appoint” function synonymously in Section 515.
Section 515(a)’s reference to “attorney[s] specially appointed by the Attorney
General” refers to the very attorneys who are “specially retained” and“commissioned” by the Attorney General under Section 515(b). Cf. Civil-Service
Bill, 17 Op. Att’y Gen. 504, 506 (1883) (“The use of the word ‘employ’ insteadof the word ‘appoint’ is unimportant, the former being sometimes used in ourlegislation in a sense equivalent to appoint.”). The primary purpose of enacting
the provision now codified at Section 515(a) was to ensure that the special
attorneys retained and commissioned under the predecessor to Section 515(b)could “conduct any kind of legal proceeding” in any district. See infra at 44-45(discussing relevant statutory history). That Congress described those attorneys
as having been “appointed by the Attorney General” confirms that Congress22

intended Section 515(b) (and its predecessors) to vest the Attorney General withthe power to appoint special counsels.
Section 515(b)’s history confirms that it is, and always has been, a statutegranting the power to appoint. Section 17 of the 1870 Act establishing the
Department of Justice was a direct precursor to Section 515(b). See An Act toEstablish the Department of Justice, ch. 150, § 17, 16 Stat. 162, 164-65 (1870)(“DOJ Act”). It provided that “every attorney . . . who shall be speciallyretained, under the authority of the Department of Justice, . . . shall receive acommission from the head of said Department, as a special assistant to the
Attorney-General, or to some one of the district attorneys, as the nature of theappointment may require, and shall take the oath required by law.” Id. (emphasis
added). As the statute made clear, all attorneys who were “specially retained”
and “commission[ed]” by the Attorney General were thereby appointed by him;
the precise role they would play affected only “the nature of the appointment.”
Id. (emphasis added).
In 1875, Congress carried over the operative language from Section 17 of
the DOJ Act into Section 366 of the Revised Statutes with a marginal note
describing the special-retention provision as the “Appointment and oath of
special attorneys or counsel.” 1 Rev. Stat. 61, tit. VIII, § 366 (1875) (“1875
Act”). That marginal note became the title of the provision when it was added23

to the U.S. Code, and for decades thereafter. See 5 U.S.C. § 315 (1925-26 ed.);accord 5 U.S.C. § 315 (1946 ed.). And while a statute’s title often has limited
interpretive value, see infra at 32, the use of “Appointment” in the title confirms
what the plain language shows: Congress understood the statute authorizing theAttorney General to “specially retain[]” an attorney as a statute granting theAttorney General the power of “[a]ppointment.”
In 1948, Congress moved the provisions relating to the U.S. Attorneys(formerly known as district attorneys) into Title 28, while temporarily leaving inTitle 5 the provisions relating to other parts of the Department. See Pub. L. No.
80-773, 62 Stat. 869, 909 (1948). Until that point, a single provision had
authorized the Attorney General to appoint special attorneys, regardless ofwhether they would serve “as a special assistant to the Attorney General, or tosome one of the district attorneys, or as a special attorney.” 5 U.S.C. § 315 (1946ed.).

After the statutory reorganization—separating the U.S. Attorneyprovisions from other DOJ provisions—two separate sections authorized theAttorney General to appoint special attorneys. One (entitled “Appointment of
attorneys”) authorized the appointment of special attorneys “to assist UnitedStates attorneys.” 28 U.S.C. § 503 (1952 ed.). The other (entitled “Appointment
and oath of special attorneys”) authorized the appointment of attorneys to serve
as “special assistant[s] to the Attorney General or special attorney[s].” 5 U.S.C.
24

§ 315 (1952 ed.). The former provision (which became 28 U.S.C. § 543) used
the language “[t]he Attorney General may appoint,” while the latter provision(which became 28 U.S.C. § 515(b)) kept language from 1870 and 1875, referring
to “specially retained” attorneys. As that history illustrates, Congress continues
to authorize the Attorney General to appoint special attorneys, either to assist
himself or to assist one of the U.S. Attorneys. That Congress used different
terminology when describing the appointment power—using “appoint” in one
section and “specially retain[]” in the other—does not reflect any intention tolimit the scope of the Attorney General’s authority. As the Supreme Court has
explained, the history of the 1948 revision to Title 28 makes “uniformly clearthat no changes of law or policy are to be presumed from changes of languagein the revision unless an intent to make such changes is clearly expressed,” andthus “[t]he change of arrangement, which placed portions of what was originallya single section in two separated sections cannot be regarded as altering thescope and purpose of the enactment.” Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222, 227 & n.8 (1957) (internal quotation marks omitted).
b.

Second, the court erred in reasoning that Section 515(b) cannot

authorize appointments because of its use of the past tense. In the district court’sview, Section 515(b) governs special attorneys who have already been appointed(under other authority) because it refers to “any attorney specially retained.”25

Dkt. 672 at 27. But “retained” in Section 515(b), like “appointed” in Section
515(a), is not a past-tense verb. It is part of a participial phrase modifying“attorney.” And while it is a past participle, “[p]ast participles . . . are routinely
used as adjectives to describe the present state of a thing.” Henson v. Santander
Consumer USA Inc., 582 U.S. 79, 84 (2017); see also id. (“the term ‘past participle’is a ‘misnomer, since’ it ‘can occur in what is technically a present tense.’”)(quoting P. Peters, The Cambridge Guide to English Usage 409 (2004) (ellipsis
omitted)). In fact, the main verbs throughout Section 515 are in the present
tense: the specially appointed attorney “may . . . conduct” legal proceedings,
and the attorney “shall be commissioned” with a title and “shall take the oath.”
And those present-tense actions should occur together with the appointment,
since it makes little sense to “appoint” a special attorney who has nocommission or title, who has not taken the oath of office, and who has no power
to act. 3

Section 17 of the DOJ Act likewise described the act of retention usingpresent-tense verbs, referring to every attorney “who shall be specially retained.”
DOJ Act, § 17, 16 Stat. 164-65. That phrase became “who is specially retained”
in the 1875 Revised Statutes, 1875 Act, § 366, 1 Rev. Stat. 61 (emphasis added),
but without any intent to change the meaning, see Act of June 27, 1866, 14 Stat.
74 (explaining that the Revised Statutes focused on altering style not substance).
Congress then simplified “[e]very attorney or counselor who is speciallyretained” to “[e]very attorney specially retained,” Pub. L. No. 80-773, 62 Stat.
895, explaining that change as designed to “omit[] surplus language” solely for
326

The district court also overlooked the modifier—“specially”—attached to“retained.” An attorney who was “previously” retained or “already retained,” seeDkt. 672 at 25, 26, 27, 38, 41, is not an attorney who was “specially retained”—
that is, retained for the specific purpose of serving “as special assistant to the
Attorney General or special attorney,” 28 U.S.C. § 515(b). The conclusion that
Congress intended Section 515(b) to apply only to attorneys who werepreviously retained for some other purpose, or for no purpose at all, cannot bereconciled with the phrase “specially retained.”
The district court’s strained reading of “retained” also seemingly ascribes
to Congress an inexplicable focus on sequencing. In the court’s view, theAttorney General could have relied on Section 515(b) to appoint any of the
10,000 already-retained attorneys in the Department of Justice as special counsel
to oversee this case. He likewise could have hired Smith for some other purpose,
cf. 5 U.S.C. § 3101 (authorizing executive agencies to hire employees); 5 U.S.C.
§ 2105 (defining the term “employee” to include “an officer”), and then after
any period of time, perhaps even a second, commissioned him as Special
Counsel, since at that point he would have satisfied the requirement of being“style purposes,” H.R. Rep. No. 80-308, at A588 (1947). Section 515(b)’sreference to an attorney “specially retained” thus means what it meant in 1870:
an attorney who “shall be specially retained,” not an attorney who was previously
retained.
27

“already retained.” The court’s conclusion that accomplishing the appointment
in a single step, rather than two separate steps, “threaten[s] the structural liberty
inherent in the separation of powers,” Dkt. 672 at 3, finds no support in text,
context, history, or common sense.
c.

Finally, the court erred by reading Sections 519 and 543 to cabin thescope of Section 515(b). According to the district court, because the Attorney
General has authority under Section 543 to “appoint attorneys to assist UnitedStates attorneys,” and because that section is titled “Special attorneys,” itfollows that that term’s “known meaning” consists solely “of attorneys
appointed by the Attorney General to assist United States Attorneys.” Dkt. 672
at 30-31. As shown, however, the Attorney General has long had the authority
to appoint special attorneys to play a variety of roles, whether “as a special
assistant to the Attorney General, or to some one of the district attorneys, or asa special attorney.” 5 U.S.C. § 315 (1946 ed.). For many years, that authority
existed in a single section; later, it was codified in two separate sections. But
there is no evidence that, through this act of statutory reorganization, Congress
withdrew the Attorney General’s longstanding power to appoint special
attorneys to assist him directly. See, e.g., Fourco Glass, 353 U.S. at 227.
The district court’s reading of Section 519 was similarly misguided. That
section provides that the Attorney General “shall supervise” all federal litigation28

involving the United States, and “shall direct all United States attorneys,
assistant United States attorneys, and special attorneys appointed under section
543.” 28 U.S.C. § 519. According to the district court, because the Attorney
General “shall direct . . . special attorneys appointed under section 543,” itfollows that no other category of special attorney exists. Dkt. 672 at 31-32. But
a more plausible reading of Section 519 is that while Congress thought itnecessary to clarify that the Attorney General’s authority to supervise federal
litigation extended even to the work of the U.S. Attorney’s Offices—whether
conducted by the U.S. Attorney, an Assistant U.S. Attorney, or a Special
Assistant U.S. Attorney—it reasonably saw no need to clarify that the Attorney
General may also supervise the very attorneys he had appointed to assist him
under Section 515(b).
2.

Section 533

Authority for the Attorney General’s appointment power also comes from
28 U.S.C. § 533. Section 533 specifically confirms that “[t]he Attorney General
may appoint officials . . . to detect and prosecute crimes against the UnitedStates.” 28 U.S.C. § 533(1). This description aligns with a Special Counsel,
who combines the typical roles of law enforcement and prosecutors by bothinvestigating and prosecuting crimes. See 28 C.F.R. § 600.1.

29

The district court’s contrary conclusion (Dkt. 672 at 43-50) relied on aflawed textual analysis, namely, that the term “official” in Section 533(1) does
not include “officers.” But the term “official” readily encompasses officers. See
Black’s Law Dictionary (defining official, inter alia, as a “person elected or
appointed to carry out some portion of a government’s sovereign powers”)(emphasis added). The Supreme Court’s opinion in Lucia v. S.E.C., 585 U.S. 237(2018), illustrates that point by stating that “[t]he Appointments Clause of theConstitution lays out the permissible methods of appointing ‘Officers of theUnited States,’ a class of government officials distinct from mere employees.” Id.
at 241 (emphasis added). Many other cases employ the same usage of “official.”
See, e.g., Ortiz v. United States, 585 U.S. 427, 452-53 (2018); Morrison v. Olson, 487
U.S. 654, 672 (1988); Buckley v. Valeo, 424 U.S. 1, 131 (1976) (per curiam); UnitedStates v. Eaton, 169 U.S. 331, 343-44 (1898). And interpreting “officials” in
Section 533 to include officers does not contradict Congress’s use of the term
“officer” in other statutes. Rather, as Lucia suggests, “official” is a generic termthat most naturally covers both officers and employees, see In re Grand Jury
Investigation, 315 F. Supp. 3d at 644; see also, e.g., 18 U.S.C. § 201(a)(1) (“public
official” includes “an officer or employee or person acting for or on behalf of the30

United States”).4

Despite acknowledging the ordinary understanding that

“official” is broader than “officer,” see Dkt. 672 at 44 (“[W]hile all officers may
be officials, not all officials are officers.”), the district court artificially narrowed
the term “official” in Section 533 to mean only “nonofficer employees.” Dkt
672 at 43. That construction finds no support in statutory text.
Nor does the noscitur a sociis canon support that strained interpretation.
See Dkt. 672 at 45-47. That canon is used only to construe terms that are “ofobscure or doubtful meaning,” not to change the meaning of an unambiguous
term such as “officials.” See Russell Motor Car Co. v. United States, 261 U.S. 514,
520 (1923). Moreover, the canon may be invoked only “when a string ofstatutory terms raises the implication that the words grouped in a list should begiven related meaning.” S. D. Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S.
370, 378 (2006) (internal quotation marks omitted); see Beecham v. United States,
511 U.S. 368, 371 (1994) (“That several items in a list share an attribute counsels
in favor of interpreting the other items as possessing that attribute as well.”). It
has no application to Section 533, which consists of four separate subsections
that permit appointment of different types of officials who share no common

Multiple statutes that vest the appointment of officers in the President, a
court of law, or a Head of Department, U.S. Const. art. II, § 2, cl. 2, use the term
“official” to refer to officers. See Dkt. 640 at 2-4 (providing examples).
431

attribute: subsection 533(1) covers officials who “detect and prosecute crimes”;
subsections 533(2) and (3) cover officials who protect the President and Attorney
General, respectively; and subsection 533(4) covers officials who carry out
investigations for the Justice and State Departments. Section 533’s enactment
history confirms that reading, as Congress originally enacted and appropriatedfunds for several of these provisions separately as “miscellaneous objects,” Pub.
L. No. 66-338, 41 Stat. 1156, 1175 (1921), and continued to make similar
appropriations until 1966, when Section 533 was enacted, see Pub. L. No. 89554, 80 Stat. 378, 616 (1966); 28 U.S.C. § 533 (Historical and Revision Notes).
The separate subsections of 533 are thus grouped together as a historical artifact,
not because they share a common attribute warranting application of the noscitur
canon.
Finally, the district court emphasized (Dkt. 672 at 50-52) Section 533’s
placement in a chapter titled “Federal Bureau of Investigation” with the heading“Investigative and other officials; appointment.” But “[t]he title of a statutecannot limit the plain meaning of the text”; the title matters “[f]or interpretive
purposes” “only when it sheds light on some ambiguous word or phrase.” Pa.
Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (brackets, ellipsis, andalterations omitted). And there is no textual hint that Section 533(1) is limited
to “nonofficer employees” or FBI investigative agents. To the contrary, Section32

533(1) allows the appointment of officials “to detect and prosecute crimes,” and“only attorneys prosecute crimes.” In re Grand Jury Investigation, 315 F. Supp.
3d at 652-53. That plain-text reading also implements Congress’s directive in
1966, when it codified Section 533, that courts draw no “inference of a legislative
construction . . . by reason of the location in the United States Code of aprovision enacted by this Act or by reason of the caption or catchline thereof.”
Pub. L. No. 89-554, 80 Stat. 631.
3.

Sections 509 and 510

Two other provisions in Title 28—Sections 509 and 510—also authorize
the Special Counsel’s appointment.

Congress has vested virtually all thefunctions of the Department of Justice in the Attorney General. See 28 U.S.C.
§ 509.

Congress has also granted the Attorney General broad powers to

structure, manage, and staff the Department. He may “prescribe regulations forthe government of his department” and “the distribution and performance of its
business.” 5 U.S.C. § 301. He may “employ such number of employees . . . asCongress may appropriate for from year to year.” 5 U.S.C. § 3101. And he maydelegate “any function” vested in him to “any other officer, employee, or agencyof the Department of Justice,” by making any “such provisions as he considers
appropriate.” 28 U.S.C. § 510.

33

The Attorney General’s power to delegate the performance of “any” ofhis myriad functions necessarily encompasses the ability to delegate functions
involving the exercise of “‘significant authority pursuant to the laws of theUnited States.’” Lucia, 585 U.S. at 245. Such a delegation may take many
forms, including the creation of a new “continuing” position, see id., or theassignment of the Attorney General’s duties to any “officer” or “employee,” see
28 U.S.C. § 510, including one newly hired for that purpose, see 5 U.S.C. § 3101.
It follows that, by granting the Attorney General broad authority to create suchoffices and delegate such significant authority, Congress has vested him with thepower to appoint inferior officers. And because one of the powers the Attorney
General may delegate is the power to prosecute “offenses against the UnitedStates,” 28 U.S.C. § 547, it follows that one of the inferior officers he may
appoint under Sections 509 and 510 is an official like the Special Counsel.
The district court incorrectly interpreted Section 510 to prevent the
Attorney General from bestowing authority on anyone other than existing
Department personnel. See Dkt. 672 at 24. Section 510’s text is not so limited.
The Attorney General’s act of appointing an officer or hiring an employee under
Section 510 necessarily makes the appointed or hired individual a part of the
Department (if that individual is not already) to whom the Attorney General
may then assign “any function.” Such an interpretation also aligns with34

Congress’s aim in Section 510, discussed below, to enable the Attorney General
to manage the Department with flexibility.
The history of Sections 509 and 510 confirms that reading.

When

Congress created the Department in 1870, it authorized the Attorney General to“require any solicitor or officers of the Department of Justice to perform any
duty required of said Department or any officer thereof.” DOJ Act, § 14, 16
Stat. 164; see also 1875 Act, § 366, 1 Rev. Stat. 61. That general power ofdelegation was expanded in 1950, when Congress adopted several
Reorganization Plans proposed by President Truman. See Pub. L. No. 81-109,
63 Stat. 203 (1949). Those Reorganization Plans were designed to improve“efficiency and economy in the executive branch,” while promoting
accountability through “[c]learer lines of responsibility” aligned to eachdepartment head. H.R. Doc. No. 81-504, Reorganization Plans No. 1 to 13 of 1950,
at 1 (1950) (internal quotation marks omitted). To achieve these goals, theReorganization Plans concentrated responsibility in department heads “foractivities within their agencies for which they” were already “held accountableby the President, the Congress, and the people,” and empowered department
heads “to effect appropriate internal adjustments” within their departments toincrease effectiveness and efficiency. Id. at 2. Congress adopted Reorganization

35

Plan No. 2, Pub. L. No. 81-921, 64 Stat. 1261 (1950), and later codified the firsttwo sections as Sections 509 and 510, see Pub. L. No. 89-554, § 4(c), 80 Stat. 612.
Attorneys General have long relied on Sections 509 and 510 (and theirpredecessors) to structure and staff the Department of Justice. See Applicabilityof Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent
Officeholders, 12 Op. O.L.C. 286, 288 n.5 (1988) (“Congress has by statute vested
the Attorney General with the authority to take certain measures, including thecreation of inferior offices within the Department of Justice, to carry out thefunctions of his office.” (citing 28 U.S.C. § 510)). The Department currently
consists of twenty-three Offices, eight Divisions, six Bureaus, and three boards.
See 28 C.F.R. § 0.1. Although some of these organizational units, such as the
National Security Division, were created by Congress,5 most were createddirectly by the Attorney General, including the Public Lands Division (now theEnvironmental and Natural Resources Division), in 1909;6 the Criminal
Division and the Antitrust Division, in 1919;7 the Tax Division, in 1933; 8 the5

See Pub. L. No. 109-177, 120 Stat. 192, 248 (2006).

See Circular No. 114, Order of the Attorney General for Division ofBusiness, Nov. 16, 1909.
61919 Att’y Gen. Ann. Rep. 6-7, 53, 75; Gregory J. Werden, Establishmentof the Antitrust Division of the U.S. Department of Justice, 92 St. John’s L. Rev. 419(2018).
7

8

1935 Att’y Gen. Ann. Rep. 51.
36

Civil Division, in 1953;9 the Executive Office for U.S. Attorneys, in 1953;10 the
Civil Rights Division, in 1957; 11 and the Executive Office for Immigration
Review (which includes the Board of Immigration Appeals and hundreds of
Immigration Judges), in 1983.12 “[I]ndeed, the structure of the Department islargely a creation of orders by the Attorney General.” Walter Dellinger, Creationof an Office of Investigative Agency Policies 4 (O.L.C. Mem. Oct. 26, 1993).
Congress has repeatedly confirmed the lawfulness of these actions. For
example, Congress routinely enacts statutes premised on the lawful existence ofoffices and officers created or appointed by the Attorney General. See, e.g., 15
U.S.C. §§ 7a, 7a-2, 18a (addressing functions of the Antitrust Division); 28
U.S.C. § 509B (requiring the Attorney General to “establish a section within the
Criminal Division of the Department of Justice with responsibility for theenforcement of laws against suspected participants in serious human rights
offenses”). Against this backdrop, Congress’s annual appropriations funding
these offices and officers confirm—and indeed ratify, if further ratification were

9

Att’y Gen. Order No. 5-53 (1953).

10

Att’y Gen. Order No. 8-53 (1953).

11

Att’y Gen. Order No. 155-57 (1957).

12

Att’y Gen. Order No. 998-83 (1983).
37necessary—the Attorney General’s power of appointment.

See Fleming v.

Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 118-19 (1947).
As part of the back-and-forth between Congress and the Executive
Branch, Congress sometimes exercises its prerogative under the Appointments
Clause to make particular inferior officers subject to presidential appointment,with Senate advice and consent. For example, Congress has identified fourteen
senior officials in the Justice Department who are currently subject topresidential appointment and Senate confirmation: the Deputy Attorney
General, the Associate Attorney General, the Solicitor General, and 11
Assistant Attorneys General. See 28 U.S.C. §§ 504, 504a, 505, 506. 13 But
Congress knows that these presidentially-appointed-and-Senate-confirmed
officials are not the only people in the Department who hold continuing
positions and exercise significant authority pursuant to the laws of the UnitedStates. See Lucia, 585 U.S. at 245; House Committee on Oversight and Reform,
United States Government Policy and Supporting Positions 88-99 (2020).

Many other officials in the Department, outside of Main Justice, arelikewise identified by statute as subject to presidential appointment with Senate
advice and consent, including the U.S. Attorneys, U.S. Marshals, and the
Directors of the DOJ law enforcement agencies. See 28 U.S.C. §§ 541(a), 561(c),599A(a)(2); Pub. L. No. 90-351, tit. VI, § 1101, 82 Stat. 197, 236 (1968);
Reorganization Plan No. 2 of 1973, Pub. L. No. 93-245, § 5(a), 87 Stat. 1091,
1092 (1973).
13

38

Indeed, Congress has expressly authorized inferior officers appointed by the
Attorney General to exercise significant authority in certain areas. For example,“a deputy solicitor general” may approve a sentencing appeal by theGovernment in a criminal case. See 18 U.S.C. § 3742(b). And a “Deputy
Assistant Attorney General . . . in the Criminal Division or National Security
Division” may approve an application for a wiretap order. See 18 U.S.C.
§ 2516(1).
As these statutes and appropriations demonstrate, Congress has vested theAttorney General with a general power to appoint inferior officers. And whenCongress wants to qualify that grant of appointment power by identifying certain
officers who should be subject to Senate advice and consent, it does so explicitly.
See supra at 38 & n.13.
Congress’s decision to confer appointment authority on a department
head through broadly worded vesting-and-delegation provisions (subject toexplicit carve-outs for certain Senate-confirmed officials) is not unique to the
Department of Justice. To the contrary, Congress has long used similar statutes
to vest the power to appoint inferior officers in other department heads,
including the Secretaries of Defense, State, Treasury, and Labor. See 10 U.S.C.
§ 113(b), (d) (Department of Defense); 22 U.S.C. § 2651a(a)(3), (4) (Departmentof State); 31 U.S.C. § 321(b)(2) (Department of the Treasury); Reorganization
39

Plan No. 6 of 1950, Pub. L. No. 81-921, 64 Stat. 1263 (1950) (Department ofLabor). And the heads of these departments have relied on such statutes toappoint hundreds of inferior officers. See, e.g., Treasury Order 101-06.
The district court thus erred in its determination that “when Congress ‘by
Law vest[s] the Appointment of such inferior Officers . . . in the Heads ofDepartments,’ it does so in a particular way”—namely, by “track[ing] thelanguage of the Appointments Clause.” Dkt. 672 at 47. In fact, Congress uses
a wide variety of language to vest appointment power in heads of departments.
Sometimes Congress precisely “tracks the language of the Appointments
Clause.” See id. at 47-48. But sometimes Congress uses vesting-and-delegation
provisions like those found in Sections 509 and 510. See Willy v. Administrative
Review Bd., 423 F.3d 483, 491-92 (5th Cir. 2005) (holding that the Secretary ofLabor was vested “with ample authority to create the [Administrative Review
Board], appoint its members, and delegate final decision-making authority tothem,” based on “[t]he broad language employed by Congress in the
Reorganization Plan No. 6 of 1950 and in 5 U.S.C. § 301”); Al Bahlul v. UnitedStates, 967 F.3d 858, 874 (D.C. Cir. 2020) (“While the explicit use of the term
‘appoint’ may ‘suggest[]’ whether a statute vests the appointment power, . . .
Congress need not use explicit language to vest an appointment in someone40

other than the President.” (quoting Edmond v. United States, 520 U.S. 651, 658(1997)).
Ultimately, Congress has broad discretion to decide not only whether tovest department heads with appointment authority, but also how to do so, and it
has exercised that discretion in various ways over time. See Pa. Dep’t of Pub.
Welfare v. U.S. Dep’t of Health & Hum. Servs., 80 F.3d 796, 804-05 (3d Cir. 1996).
The district court erred by focusing only on the statutes that follow one particularpattern, while failing to acknowledge the vesting-and-delegation pattern that
Congress has used to grant appointment power to the heads of some of the oldest
and largest departments in the Executive Branch.
***

The sole question this case presents is whether Congress has by law
authorized the Attorney General to appoint the Special Counsel. Congress hasdone so in Sections 509, 510, 515, and 533, and the district court was wrong toview that straightforward question of statutory construction as implicating
concerns about “structural liberty,” “structural integrity,” “democratic
accountability,” or “usurpation . . . ‘by indirection.’” See, e.g., Dkt. 672 at 3, 15,
16. Congress is free to vest a department head with the power to appoint inferior
officers based on its assessment of “administrative convenience.” Edmond, 520

41

U.S. at 660.

Where, as here, Congress does so, it fully satisfies the

Appointments Clause.
C.

The Long History of Appointments of Special Counsels Reflects
the Attorney General’s Authority to Make the Appointment HereFor more than 150 years, Attorneys General have appointed special
counsels to investigate and prosecute some of the nation’s most consequential
cases. This “deeply rooted tradition of appointing an outside prosecutor to run
particular federal investigations,” Brett M. Kavanaugh, The President and theIndependent Counsel, 86 Geo. L.J. 2133, 2142-43 (1998), further confirms thelawfulness of the Special Counsel’s appointment.
1.

Attorneys General appointed special counsels even before thecreation of the Department of Justice. In 1857, the Attorney General appointed
Edwin Stanton as special counsel to prosecute a land-fraud claim in California.
See Homer Cummings & Carl McFarland, Federal Justice 134-36 (1937); UnitedStates v. Limantour, 26 F. Cas. 947 (N.D. Cal. 1858). And in the wake of the
Civil War, Attorneys General appointed outside attorneys to prosecute some of
the most significant cases of the day, including the prosecution of Jefferson
Davis for treason 14 and the prosecution of John Surratt for aiding and abetting

See Cynthia Nicoletti, Secession on Trial: The Treason Prosecution ofJefferson Davis 39, 47 (Cambridge Univ. Press 2017).
14

42

the assassination of President Lincoln.15 See Cong. Globe, 41st Cong., 2d Sess.
3034-39 (Apr. 27, 1870); S. Exec. Doc. 40-13 (1867).
When creating the Department of Justice, Congress recognized the needfor the Attorney General to continue appointing such “leading counsel.” Cong.
Globe, 41st Cong., 2d Sess. 3035-36 (Apr. 27, 1870). Congress thought it more
appropriate and cost-effective, however, to hire these attorneys into the
Department directly, paying them a salary and ensuring that each “holds a
commission under the United States and is responsible to the law and the proper
authorities.” Id. Those concerns led directly to language in the 1870 Act, which(as noted) required every attorney “specially retained, under the authority of the
Department of Justice,” to “receive a commission from the head of said
Department, as a special assistant to the Attorney-General, or to some one ofthe district attorneys, as the nature of the appointment may require.” DOJ Act§ 17, 16 Stat. 164-65; see also 1875 Act, § 366, 1 Rev. Stat. 61. Congress thus
granted the Attorney General discretion “to determine whether the public
interests required the employment of special counsel.”United States v.

Crosthwaite, 168 U.S. 375, 379 (1897); see also United States v. Winston, 170 U.S.

15

See Death of a Noted Jurist, N.Y. Times (Mar. 7, 1892).
43522, 525 (1898) (when the Attorney General “deems it essential,” he may“employ special counsel”).
“Armed with these provisions, Attorneys General made extensive use of
special attorneys.” In re Persico, 522 F.2d 41, 54 (2d Cir. 1975). During theadministration of Theodore Roosevelt, for example, the Attorney Generalappointed special counsels to conduct prominent investigations into “grosscorruption” in the Post Office Department, see H.R. Doc. No. 58-383, at 6, 197(1904); land fraud in Oregon, see 44 Cong. Rec. H4541 (daily ed. July 19, 1909);
Lincoln Steffens, The Taming of the West, Pt. II, in The American Magazine, vol.
64, at 587-99 (Oct. 1907); and fraudulent importation of Japanese silks, UnitedStates v. Rosenthal, 121 F. 862 (C.C. S.D.N.Y. 1903).
On the rare occasion when a court raised doubts about the authority ofthese special counsels, Congress quickly intervened. In Rosenthal, for example,
the court dismissed the indictment, holding that a special assistant to the
Attorney General could not conduct grand jury proceedings. 121 F. at 868. The
court acknowledged that Section 366 “recogni[zed] the Attorney General’s
power, not elsewhere stated, to appoint a ‘special assistant to the Attorney
General,’ ‘to assist in the trial of any case.’” Id. at 867. But because Section 366
referred only to “trial[s],” the court held that a special assistant could notconduct grand jury proceedings. See id. at 865-68. Congress responded in 190644

with a law whose “express purpose . . . was to overrule the broad holding in
Rosenthal,” explicitly giving “specially-retained outside counsel” all of thepowers of a U.S. Attorney.

In re Persico, 522 F.2d at 59.

That law—thepredecessor to Section 515(a)—confirmed that “any attorney or counselor
specially appointed by the Attorney-General” was authorized to “conduct any
kind of legal proceeding, civil or criminal, including grand jury proceedings,”
which could otherwise be conducted by U.S. District Attorneys. Pub. L No. 59404, 34 Stat. 816 (1906). As the House Report explained, “[t]here can be no
doubt of the advisability of permitting the Attorney-General to employ special
counsel in special cases”; such appointments had “been the practice to do so inthe past,” and “it will be necessary that this practice shall continue in the future.”
H.R. Rep. No. 59-2901, at 2 (1906).
Attorneys General regularly appointed special counsels from within andoutside the Department in the decades that followed,16 including one toSee, e.g., May v. United States, 236 F. 495, 498 (8th Cir. 1916); UnitedStates v. Cohen, 273 F. 620, 620-21 (D. Mass. 1921); Ewert v. Bluejacket, 259 U.S.
129, 133 (1922); United States v. Morse, 292 F. 273, 276 (S.D.N.Y. 1922); UnitedStates v. Martins, 288 F. 991, 992 (D. Mass. 1923); Yaselli v. Goff, 12 F.2d 396,
398 (2d Cir. 1926), aff’d, 275 U.S. 503 (1927) (per curiam); Hale v. United States,
25 F.2d 430, 435 (8th Cir. 1928); United States v. Amazon Indus. Chem. Corp., 55
F.2d 254, 256 (D. Md. 1931); State of Russia v. Nat’l City Bank of N.Y., 69 F.2d 44,
48 (2d Cir. 1934); Belt v. United States, 73 F.2d 888, 888 (5th Cir. 1934); Shushan
v. United States, 117 F.2d 110, 113-14 (5th Cir. 1941); United States v. Powell, 81
1645

investigate allegations of corruption within the Justice Department during theTruman Presidency. David Logan, Cong. Research Serv., Historical Uses of aSpecial Prosecutor: The Administrations of Presidents Grant, Coolidge and Truman 2635 (1973). Congress sometimes amended the applicable statutes to expand andclarify the scope of the Attorney General’s authority. In 1930, for example,
Congress amended the precursor to Section 515(b) (then codified at 5 U.S.C.
§ 315) to allow the Attorney General to designate “special attorney[s]” in
addition to “special assistant[s] to the Attorney General.” See Act of Apr. 17,
1930, Pub. L. No. 71-133, 46 Stat. 170. But despite the widespread use of special
counsels during this period, Congress never questioned the Attorney General’s
power to make such appointments.

To the contrary, Congress routinely

appropriated money to fund their work.17
Special counsels received new prominence during Watergate. Citing
Sections 509 and 510, Attorney General Elliot Richardson appointed Archibald
Cox as the Director of the Watergate Special Prosecution Force. See Att’y Gen.

F. Supp. 288, 291 (E.D. Mo. 1948); United States v. Milanovich, 303 F.2d 626, 629(4th Cir. 1962).
Act of Aug. 30, 1890, ch. 837, 26 Stat. 371, 409-10; Act of Mar. 3, 1891,
ch. 542, 26 Stat. 948, 986; Act of Mar. 3, 1901, ch. 853, 31 Stat. 1133, 1181-82;
Act of Feb. 25, 1903, Pub. L. No. 57-115, 32 Stat. 854, 903-04; Act of July 19,
1919, Pub. L. No. 66-21, 41 Stat. 163, 210; Act of Mar. 4, 1921, Pub. L. No. 66389, 41 Stat. 1367, 1412; Act of June 3, 1948, Pub. L. No. 80-597, 62 Stat. 305,
317.
17

46

Order No. 518-73 (May 25, 1973). Following the so-called Saturday Night
Massacre—resulting in the resignation of Richardson and the firing of Cox—
Acting Attorney General Robert Bork appointed Leon Jaworski as the Directorof the Watergate Special Prosecution Force, again citing Sections 509 and 510
as authority. See Att’y Gen. Order No. 552-73 (Nov. 5, 1973). Bork also cited
Sections 509, 510, and 515 when issuing regulations to “illustrat[e] the authority
entrusted to the Special Prosecutor,” including the authority to conduct grandjury proceedings and to “contest the assertion of ‘Executive Privilege.’” See
Att’y Gen. Order No. 551-73 (Nov. 2, 1973). Roughly eight months later, theSupreme Court confirmed the legality of the Attorney General’s actions. See
Nixon, 418 U.S. at 694-95.
In the wake of Watergate, Congress passed the Ethics in Government Act
of 1978, which authorized the appointment of a “Special Prosecutor” (later
relabeled an “Independent Counsel”) by a Special Division of the D.C. Circuit.
Pub. L. No. 95-521, § 601, 92 Stat. 1824, 1867. But nothing in that statutepurported to limit or revoke the Attorney General’s preexisting statutory
authority to appoint a special counsel directly.18 Instead, the statute created a

The lead Senate Report, for example, recounted prominent special
counsels appointed by Attorneys General, and highlighted their lack of
independence, but expressed no doubt that the Attorney General had been
18

47

second, parallel mechanism for such appointments. See, e.g., Kavanaugh, supra,
at 2139 (explaining that “current federal law provides two different mechanisms
for appointment of special counsel”).
Following the Act’s passage, Attorneys General continued to appoint
special counsels outside of the Act. During the Carter administration, theAttorney General, citing Section 515, appointed a special counsel to investigate
financial dealings involving the President’s family peanut warehouse.19 Later,when questions arose about the constitutionality of the appointment provisionsof the Ethics in Government Act, see Morrison, 487 U.S. at 668, the Attorney
General executed a parallel appointment of Lawrence Walsh to investigate the
Iran-Contra affair, citing Sections 509, 510, and 515.20 The Acting Attorney
General appointed James McKay in 1987 to investigate allegations of illicit

vested with the power to appoint them. See S. Rep. No. 95-170, at 2-3, 6-7(1977).
125 Cong. Rec. H5534 (daily ed. Mar. 20, 1979) (statement of Rep.
Sensenbrenner); The Future of the Independent Counsel Act: Hearings Before the Senate
Comm. on Governmental Affairs, S. Hrg. 106-131, at 113 (1999).
19

Offices of Independent Counsel; General Powers and Establishment of
Independent Counsel—Iran/Contra, 52 Fed. Reg. 7270-02 (Mar. 10, 1987)(codified at 28 C.F.R. pt. 600 (1988) (“General Powers Of IndependentCounsel”) & pt. 601 (1988) (“Jurisdiction of the Independent Counsel:
Iran/Contra”)); see also In re Sealed Case, 829 F.2d at 51-52, 55-56.
20

48

lobbying and conflicts of interest.21

During the George H.W. Bushadministration, the Attorney General appointed three separate special counsels
from outside the Department to investigate allegations of criminal conduct
within the government. See Cong. Research Serv., Independent Counsel Law
Expiration and the Appointment of “Special Counsels” 3-4 (2002). And when the
Independent Counsel Act briefly lapsed during the Clinton Administration, theAttorney General appointed Robert Fiske to investigate the Whitewater
allegations against the President and his former business partners.

See

Independent Counsel: In re Madison Guaranty Savings & Loan Association, 59 Fed.
Reg. 5321-02 (Feb. 4, 1994).
When Congress was considering whether to allow the IndependentCounsel Act to expire, it repeatedly sought information about “how the
Department of Justice would handle matters that” were then handled bystatutory Independent Counsels.

The Future of the Independent Counsel Act:

Hearings Before the Senate Comm. on Governmental Affairs, S. Hrg. 106-131, at 315(1999).

In response, the Department assured Congress that the Attorney

General possessed adequate authority to name a special outside counsel and

28 C.F.R. § 602.1 (“Independent Counsel: In re Franklyn C. Nofziger”);
see 52 Fed. Reg. 22,439-01 (June 12, 1987); 52 Fed. Reg. 35,543-01 (Sept. 22,
1987).
21

49

would exercise that authority if necessary, including to handle particularly
sensitive matters “that pose a substantial potential for a significant conflict ofinterest.” Id. The Attorney General likewise testified that, in light of the Act’s“structural[] flaw[s],” the goals of the Act “would best be served” by letting the
Act expire and “return[ing] to the system that existed before the” Act, “whenthe Attorney General exercised the authority to appoint a special prosecutor in
exceptional situations.” Id. at 243, 245. She “emphasize[d]” that “the Attorney
General has the ability to appoint a special prosecutor, and I, for one, would nothesitate to do so in an appropriate case, should the Act lapse.” Id. at 247.
Indeed, during the extensive congressional, scholarly, and public debate about
whether the Act should be reauthorized, one point on which there waswidespread agreement was that the effect of letting the Act expire would be toreturn “to the pre-Watergate system” in which “[t]he Attorney General has thestatutory authority to appoint special counsel.” Id. at 4 (statement of Sen.
Thompson); see also id. at 8, 15, 20, 29, 37, 75, 120-25, 139, 148, 151, 194 (similarstatements from other Senators and witnesses). 22 It was against this backdropthat Congress chose to let the Act expire.
For example, former Senators Robert Dole and George Mitchell asked
the American Enterprise Institute and the Brookings Institution to convene “abipartisan group of eight distinguished citizens”—including the current Chief
Justice—to study and recommend alternatives to the Independent Counsel Act.
22

50

After Congress did so, the Attorney General promulgated the regulations
that currently govern Special Counsels “selected [by the Attorney General] fromoutside the United States Government,” 28 C.F.R. § 600.3(a), invoking “theauthority vested in [her] as Attorney General, including 5 U.S.C. 301 and 28
U.S.C. 509 and 510.” 64 Fed. Reg. 37,038, 37,042 (July 9, 1999). In the years
since, Attorneys General have continued to appoint special counsels, including
John Danforth, Patrick Fitzgerald, Robert S. Mueller III, John Durham, Robert
Hur, and David Weiss—some from within the Department and some brought
into the Department like Special Counsel Smith. Courts uniformly rejectedchallenges to those appointments, see supra at 16-17, until the district court’s
decision in this case.
2.

In the district court’s view (Dkt. 672 at 36-41), however, this history

presents nothing more than a “spotty” picture of “an ad hoc, inconsistentpractice” that “makes it near impossible to draw any meaningful conclusions

See American Enterprise Inst. & Brookings Inst., Project on the Independent Counsel
Statute: Report and Recommendations, at iii (May 1999). The resulting report
explained that “[s]ince creation of the Department of Justice in 1870, theAttorney General has had standing statutory authority, now in 28 U.S.C. § 515,
to retain a counsel as a ‘special assistant to the Attorney General’ or as a ‘special
attorney.” Id. at 5. Although the report recommended a legislative response to
the Act’s expiration, it noted that the appointment provision in the proposed
legislation merely “duplicates authority that exists in 28 U.S.C. § 515, and other
U.S. Code sections.” Id. at 14 n.6, Appendix A-1.
51

about Congress’s approval of modern special counsels like Special Counsel
Smith.” Id. at 36-41. To reach that conclusion, the district court attached undue
weight to several superficial variations in historical practice that shed no light on
the question at hand.
To begin, the district court erroneously relied on variations in themechanism by which special counsels have been appointed, emphasizing (Dkt.
672 at 36-38) that (1) not every special counsel in history has been appointed by
the Attorney General, and (2) not every Attorney General who appointed a
special counsel explicitly relied on Section 515. But the question is not whether
Attorneys General “were solely and exclusively responsible for the act of
appointment.” Id. at 37 (emphasis added). The question is whether Congresshas vested Attorneys General with the power of appointment; the fact that the
President has, at times, also exercised appointment power, and that on one
occasion the President’s selections were made subject to Senate confirmation,23
sheds no light on the Attorney General’s power. Nor is it significant thatAttorneys General have cited different statutory provisions when appointing a
special counsel. Sections 515, 533, and 509/510 each independently authorize

See Jerome J. Shestack, Foreword: The Independent Counsel Act Revisited,
86 Geo. L.J. 2011, 2012 (1998) (noting that the Teapot Dome scandal was “thefirst and last time Senate consent was involved” with a special counsel’s
appointment).
52
23

the Attorney General to appoint a special counsel, and the fact that the
Attorneys General have cited different statutes at different times supports, rather
than undermines, their authority to do so.
The district court also attached undue weight to the fact that some special
counsels have been appointed from within the Department, while others havebeen appointed from outside the Department. See Dkt. 672 at 38-39. The district
court erroneously derived that distinction from Section 515(b)’s use of the past
participle “retained,” while offering no theory for why Congress would havebuilt such a distinction into the statute. The district court compounded its error
by fundamentally mischaracterizing the Special Counsel’s role. According to
the district court, “Mr. Smith is a private citizen exercising the full power of a
United States Attorney.” Id. at 41 (emphasis added). But he is not a private
citizen: he is a sworn officer of the Department of Justice. There was a periodin American history when “private citizens” prosecuted some of the mostconsequential cases of the day, such as the prosecution of Jefferson Davis. Butthat has not been the practice for more than 150 years. And to the extent the
district court used the term “private citizen” to refer to someone who was notalready a member of the Department of Justice before receiving his commission,that definition applies equally to every member of the Department and has no53

relevance to the Appointments Clause or to the statutes authorizing theappointment of Special Counsel Smith.
The district court likewise attached undue weight to variations in the
degree of independence granted to special counsels, emphasizing (Dkt. 672 at
39) that not all “have operated with the same degree of power and autonomy asSpecial Counsel Smith.” Congress has granted the Attorney General not only
the power to appoint special counsels, but discretion to determine how much
independence to give them. See 28 U.S.C. §§ 510, 515. In some cases, theAttorney General might direct a special counsel to play a relatively minor role.
But in other cases, he might direct a special counsel to oversee an entire
investigation and prosecution, subject to greater or lesser oversight by the
Attorney General as his judgment dictates. Indeed, the latter model has been
the norm for the half century since Watergate, and it goes back further still. For
example, when Attorney General Knox appointed Francis Heney as a special
assistant in 1909 to investigate the land fraud cases in Oregon, the local District
Attorney initially “regarded [Heney] as an assistant,” but Knox clarified that
Heney was “‘to be in full charge,’” telling the District Attorney that Heney “wasto be obeyed as the Attorney-General himself would be obeyed.” Steffens, supra,
at 587. Likewise, in 1865, William Evarts and John Clifford were “hired todirect the [Jefferson] Davis prosecution,” Nicoletti, supra, at 126, not merely to54

serve as assistants to a local District Attorney. The fact that Attorneys General
have chosen to give special counsels varying amounts of autonomy in different
circumstances in no way casts doubt on their authority to make theappointments in the first instance.
Finally, the district court attached undue weight to variations in
nomenclature, finding it significant that “[s]pecial-attorney-like figures bore
many titles throughout the decades,” including “[s]pecial attorneys,” “[s]pecial
assistants,” “[s]pecial prosecutors,” “[i]ndependent counsels,” and “special
counsels.” Dkt. 672 at 38. But any linguistic variation between these terms is
entirely superficial. When Congress amended Section 515(b)’s predecessor in1930 to allow the Attorney General to commission an appointee as either a“special attorney” or a “special assistant to the Attorney General,” it did sostrictly to avoid potential “confusion and misunderstanding” arising from thelatter term, demonstrating that any difference between the two titles was purely
semantic. See H.R. Rep. No. 71-229, at 1 (1930). And any subtle, non-semantic
difference between a special counsel, a special prosecutor, a special attorney,
and a special assistant to the Attorney General has no bearing on whether
Congress has vested the Attorney General with the power to make suchappointments.

55

3.

The district court’s reasoning also needlessly casts doubt on

longstanding practices in the Department of Justice and across the Executive
Branch. It suggests that every special counsel throughout history who was
appointed from outside the Department of Justice and who did not assist a U.S.
Attorney was invalidly appointed; that every Attorney General who made suchappointments acted ultra vires; that Congress repeatedly overlooked thepersistent pattern of errors; and that the Supreme Court itself failed to spot thatflaw in Nixon. But it also goes much further. If the Attorney General lacks thepower to appoint inferior officers, that conclusion would invalidate theappointment of every member of the Department who exercises significant
authority and occupies a continuing office, other than the few that are
specifically identified by statute. See supra at 38-39. At a minimum, that list
includes high-ranking Department positions such as the Deputy Solicitors
General and the Deputy Assistant Attorneys General. The district court’s
rationale would likewise raise questions about hundreds of appointments
throughout the Executive Branch, including in the Departments of Defense,
State, Treasury, and Labor, which all rely on statutes resembling Sections 509
and 510 to support their Secretary’s authority to appoint inferior officers. See
supra at 39-40. The implausibility of that outcome underscores why the district
court’s novel conclusions lack merit.
56

II.

The Special Counsel Was Properly Funded
The Special Counsel is properly funded through the congressionallyenacted “permanent indefinite appropriation” to “pay all necessary expenses ofinvestigations and prosecutions by independent counsel appointed pursuant to
the provisions of 28 U.S.C. 591 et seq. or other law.” Pub. L. No. 100-202, tit.
II, § 101(a), 101 Stat. 1329, 1329-9 (1987) (28 U.S.C. § 591 note). The district
court’s contrary conclusion depended solely on its erroneous determination thatno “other law” supported the Special Counsel’s appointment. Dkt. 672 at 87.
But Sections 509, 510, 515, and 533 authorized the Attorney General to appoint
the Special Counsel, as the Supreme Court held in Nixon. See supra at 13-56.
Because its premise was wrong, so was its conclusion.
CONCLUSIONThe Court should reverse the dismissal order and remand for further
proceedings.
Respectfully submitted,
J.P. COONEY
Deputy Special Counsel

JACK SMITH
Special Counsel

JAY I. BRATTMICHAEL R. DREEBENRAYMOND N. HULSER
Counselors to the Special Counsel

DAVID V. HARBACH II
JOHN M. PELLETTIERICECIL W. VANDEVENDER/S/ JAMES I. PEARCE
Assistant Special Counsels
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
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Rm. B-206
Washington, D.C. 20530

August 26, 2024

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CERTIFICATE OF COMPLIANCE
1.

This brief contains 12,978 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(f).
2.

This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in proportionally spaced, 14-point serif typeface
using Microsoft Office Word 2017.
/s/James I. Pearce
James I. Pearce
Assistant Special Counsel

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CERTIFICATE OF SERVICE
I hereby certify that on August 26, 2024, I electronically filed the foregoingwith the Clerk of the Court for the United States Court of Appeals for the
Eleventh Circuit by using the CM/ECF system. I further certify that appellees’
counsel are registered CM/ECF users and that service will be accomplished by
the CM/ECF system.
/s/James I. Pearce
James I. Pearce
Assistant Special Counsel

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