The Special Counsel's "No Source" Appointment

Abstract

This Article examines Judge Cannon's recent dismissal of charges against former President Donald Trump, focusing on her novel interpretation of 28 U.S.C. § 533 regarding the appointment of Special Counsel Jack Smith. It explores the tension between Judge Cannon's reliance on the provision's placement within the "Federal Bureau of Investigation" chapter to read it narrowly and the legislated canon in Title 28 disclaiming interpretive reliance on caption and placement. The Article traces § 533's unusual path from buried language in appropriations bills to its current form, revealing it as essentially a "no source" provision created by codifiers without direct statutory basis. It argues that this unusual origin actually justifies a narrow reading of the statute, despite the seeming conflict with the legislated interpretive rule. By illuminating the complexities of codification in the U.S. Code, this analysis offers a nuanced approach to statutory interpretation that considers the origin and statutory history of a provision, particularly when dealing with statutory features introduced by codifiers rather than Congress.

Keywords: special counsel, statutory interpretation, constitutional law