re: Thomas to Jack Smith and Garland: You don’t have Authority

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This has never been to SCOTUS.

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The prior rulings are based in US from Nixon (the one from 1974)

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The question whether Congress has “by law” vested appointment of Special Counsel Mueller in the Attorney General has already been decided by the Supreme Court. In United States v. Nixon, 418 U.S. 683, 694 (1974), the Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.” In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon. Id.

Miller contends, unpersuasively, that the quoted sentence in Nixon, 418 U.S. at 694, is dictum because the issue whether the Attorney General had statutory authority to appoint a special prosecutor was not directly presented and the Supreme Court did not analyze the text of the specific statutes. It is true that a statement not necessary to a court’s holding is dictum. See City of Okla. City v. Tuttle, 471 U.S. 808, 842 (1985); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); Martello v. Hawley, 300 F.2d 721, 722–23 (D.C. Cir. 1962). But Miller misreads Nixon, for the Supreme Court was presented with the question whether a justiciable controversy existed. When the Special Prosecutor issued a subpoena to the President to produce certain recordings and documents, the President moved to quash the subpoena, asserting a claim of executive privilege, id. at 688, and maintained the claim was nonjusticiable because it was “intra-executive” in character, id. at 689. The Supreme Court held there was a justiciable controversy because the regulations issued by the Attorney General gave the Special Prosecutor authority to contest the President’s invocation of executive privilege during the investigation. Id. at 695–97. In this analysis, the Attorney General’s statutory authority to issue the regulations was a necessary antecedent to determining whether the regulations were valid, and, therefore, was necessary to the decision that a justiciable controversy existed. The Supreme Court’s quoted statement regarding the Attorney General’s power to appoint subordinate officers is, therefore, not dictum. Moreover, under this court’s precedent, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012).

Furthermore, in Sealed Case, 829 F.2d at 52–53, this court recognized that the statutory scheme creating the Department vests authority in the Attorney General to appoint inferior officers to investigate and to prosecute matters with a level of independence. There, the Attorney General appointed an independent counsel and promulgated regulations to create an office to investigate whether Lieutenant Colonel Oliver L. North and other officials violated federal criminal law in connection with the shipment or sale of military arms to Iran and the transfer or diversion of funds connected to any sales (referred to as the Iran/Contra matter). The Attorney General also authorized the independent counsel to prosecute any violations of federal criminal laws uncovered during investigation of the Iran/Contra matter. Id. at 52. North refused to comply with a grand jury subpoena, arguing that the independent counsel’s appointment was invalid. Id. at 54–55. This court disagreed:

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CD COA ruling on this issue in the Mueller investigation

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A lone concurrence does not establish this.

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I was about to post basically this. You are being downvoted to smithereens, but you are correct; it is likely that Trump would lose a narrow case based on this. It would probably come down to how two of Roberts, Kavanaugh and Barrett would vote.

Van Jones had a meltdown saying that SCOTUS enabled a dictator Trump.

MSNBC CNN don't seem to be talking about Justice Thomas' opinion. They will ignore it like Biden thumbs the SCOTUS.

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It's probably only going to be discussed in the other partisan echo chamber

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It was discussed on MSNBC earlier.

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In before SFP keeps repeating this has been settled law by the DC court.

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Rough week for that guy. Hope he’s doing ok today.

This is a dog-whistle for Cannon to bring it.

When you list the great American patriots of our time, Trump, Rush, Tucker, etc...

You HAVE to include Mr. Thomas on this list. It's scary how few true blue patriots in power we have standing in the way of the US being turned into a country we (including the clueless, stupid rank and file progressives) DO NOT WANT.

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It's been a bad week for you liberals.

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And it is only Monday morning.

Why would it be wrong for Judge Cannon to tell Jack to go get Senate conformation then come back to me? Don't dismiss the case, just out of judicial prudence get Jack confirmed by the Senate to remove the question of judicial authority. The very fact that Jack's authority is being questioned should prompt his team to seek Senate confirmation to embolden the DOJ's pursuit of the rule of law. Go above your call.