Ana Marie

Consider the office of Jack Smith, the Special Counsel. It simply *must* be unconstitutional. Congress has mandated that U.S. Attorneys be Senate confirmed (after being presidentially nominated) and constitutional law mandates that U.S. Attorneys serve at the pleasure of the President. And U.S. Attorneys have (most of the time) limited geographic jurisdiction. The E.D. Pa. U.S. Attorney can prosecute federal crimes in Philadelphia but not San Francisco. And the N.D. Cal. U.S. Attorney can prosecute federal crimes in San Francisco but not Philadelphia. A Special Counsel like Jack Smith can prosecute *anywhere* in the whole country. He fuses the powers of ALL U.S. Attorneys in one (like the superhero Shazam fuses the powers of various Greek gods into one). And yet a Special Counsel like Jack Smith is not Senate confirmed. AND he cannot be removed at the pleasure of the President. Only the Attorney General can remove him, and even then only for cause. All of this is constitutional anathema AND it wildly flouts Congress. Finally, Special Counsels were created by mere regulation issued by the Attorney General. If that move is constitutional, then an Attorney General can totally subvert the Constitution and Congress by creating various DOJ officials by mere regulation and giving them powers that equal or exceed those of U.S. Attorneys. And if that can logically happen, then the congressional requirement of Senate confirmation is rendered meaningless and regulations by the AG can effectively leave U.S. Attorneys, creatures of statute, as nullities. Indeed, here’s a bonus point — the Independent Counsel statute was allowed to expire by Congress. Allowing the AG to largely recreate that system — by regulation — therefore flouts Congress in a separate way — not just by end running how U.S. Attorneys operate and are appointed and confirmed.