What the judge was thinking and what's next in Trump documents case - Harvard Gazette

It's a mashup of statutory analysis and two constitutional principles - the Appointments Clause and the Appropriations Clause. She looks at the provisions in the order appointing Smith that set forth the statutory basis for that appointment. She also looks at the statutes and concludes that the statutes do not authorize the attorney general to appoint a special counsel.

She focuses on the fact that Smith was not a Department of Justice employee or officer at the time of the appointment - he was working at The Hague. She infuses the analysis with lengthy discussions of the Appointments Clause and the Appropriations Clause.

In my view, her reading of the statutory provisions is quite stingy. Two other district courts and the D.C. Circuit have considered this issue - the legality of the special counsel - and they have all rejected it.

Read at Harvard Gazette