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Ultimate guide to writing a five paragraph essay.

Are you struggling with writing essays? Do you find yourself lost in a sea of ideas, unable to structure your thoughts cohesively? The five paragraph essay is a tried-and-true method that can guide you through the writing process with ease. By mastering this format, you can unlock the key to successful and organized writing.

In this article, we will break down the five paragraph essay into easy steps that anyone can follow. From crafting a strong thesis statement to effectively supporting your arguments, we will cover all the essential components of a well-written essay. Whether you are a beginner or a seasoned writer, these tips will help you hone your skills and express your ideas clearly.

Step-by-Step Guide to Mastering the Five Paragraph Essay

Writing a successful five paragraph essay can seem like a daunting task, but with the right approach and strategies, it can become much more manageable. Follow these steps to master the art of writing a powerful five paragraph essay:

• Understand the structure: The five paragraph essay consists of an introduction, three body paragraphs, and a conclusion. Each paragraph serves a specific purpose in conveying your message effectively.
• Brainstorm and plan: Before you start writing, take the time to brainstorm ideas and create an outline. This will help you organize your thoughts and ensure that your essay flows smoothly.
• Write the introduction: Start your essay with a strong hook to grab the reader’s attention. Your introduction should also include a thesis statement, which is the main argument of your essay.
• Develop the body paragraphs: Each body paragraph should focus on a single point that supports your thesis. Use evidence, examples, and analysis to strengthen your argument and make your points clear.
• Conclude effectively: In your conclusion, summarize your main points and restate your thesis in a new way. Leave the reader with a thought-provoking statement or a call to action.

By following these steps and practicing regularly, you can become proficient in writing five paragraph essays that are clear, coherent, and impactful. Remember to revise and edit your work for grammar, punctuation, and clarity to ensure that your essay is polished and professional.

Understanding the Structure of a Five Paragraph Essay

When writing a five paragraph essay, it is important to understand the basic structure that makes up this type of essay. The five paragraph essay consists of an introduction, three body paragraphs, and a conclusion.

Introduction: The introduction is the first paragraph of the essay and sets the tone for the rest of the piece. It should include a hook to grab the reader’s attention, a thesis statement that presents the main idea of the essay, and a brief overview of what will be discussed in the body paragraphs.

Body Paragraphs: The body paragraphs make up the core of the essay and each paragraph should focus on a single point that supports the thesis statement. These paragraphs should include a topic sentence that introduces the main idea, supporting details or evidence, and explanations or analysis of how the evidence supports the thesis.

Conclusion: The conclusion is the final paragraph of the essay and it should summarize the main points discussed in the body paragraphs. It should restate the thesis in different words, and provide a closing thought or reflection on the topic.

By understanding the structure of a five paragraph essay, writers can effectively organize their thoughts and present their ideas in a clear and coherent manner.

Choosing a Strong Thesis Statement

One of the most critical elements of a successful five-paragraph essay is a strong thesis statement. Your thesis statement should clearly and concisely present the main argument or point you will be making in your essay. It serves as the foundation for the entire essay, guiding the reader on what to expect and helping you stay focused throughout your writing.

When choosing a thesis statement, it’s important to make sure it is specific, debatable, and relevant to your topic. Avoid vague statements or generalizations, as they will weaken your argument and fail to provide a clear direction for your essay. Instead, choose a thesis statement that is narrow enough to be effectively supported within the confines of a five-paragraph essay, but broad enough to allow for meaningful discussion.

By choosing a strong thesis statement, you set yourself up for a successful essay that is well-organized, coherent, and persuasive. Take the time to carefully craft your thesis statement, as it will serve as the guiding force behind your entire essay.

Developing Supporting Arguments in Body Paragraphs

When crafting the body paragraphs of your five paragraph essay, it is crucial to develop strong and coherent supporting arguments that back up your thesis statement. Each body paragraph should focus on a single supporting argument that contributes to the overall discussion of your topic.

To effectively develop your supporting arguments, consider using a table to organize your ideas. Start by listing your main argument in the left column, and then provide evidence, examples, and analysis in the right column. This structured approach can help you ensure that each supporting argument is fully developed and logically presented.

Additionally, be sure to use transitional phrases to smoothly connect your supporting arguments within and between paragraphs. Words like “furthermore,” “in addition,” and “on the other hand” can help readers follow your train of thought and understand the progression of your ideas.

Remember, the body paragraphs are where you provide the meat of your argument, so take the time to develop each supporting argument thoroughly and clearly. By presenting compelling evidence and analysis, you can effectively persuade your readers and strengthen the overall impact of your essay.

Polishing Your Writing: Editing and Proofreading Tips

Editing and proofreading are crucial steps in the writing process that can make a significant difference in the clarity and effectiveness of your essay. Here are some tips to help you polish your writing:

1. Take a break before editing: After you finish writing your essay, take a break before starting the editing process. This will help you approach your work with fresh eyes and catch mistakes more easily.

2. Read your essay aloud: Reading your essay aloud can help you identify awkward phrasing, grammar errors, and inconsistencies. This technique can also help you evaluate the flow and coherence of your writing.

3. Use a spelling and grammar checker: Utilize spelling and grammar checkers available in word processing software to catch common errors. However, be mindful that these tools may not catch all mistakes, so it’s essential to manually review your essay as well.

4. Check for coherence and organization: Make sure your ideas flow logically and cohesively throughout your essay. Ensure that each paragraph connects smoothly to the next, and that your arguments are supported by relevant evidence.

5. Look for consistency: Check for consistency in your writing style, tone, and formatting. Ensure that you maintain a consistent voice and perspective throughout your essay to keep your argument coherent.

6. Seek feedback from others: Consider asking a peer, teacher, or tutor to review your essay and provide feedback. External perspectives can help you identify blind spots and areas for improvement in your writing.

7. Proofread carefully: Finally, proofread your essay carefully to catch any remaining errors in spelling, grammar, punctuation, and formatting. Pay attention to details and make any necessary revisions before submitting your final draft.

By following these editing and proofreading tips, you can refine your writing and ensure that your essay is polished and ready for submission.

Tips for Successful Writing: Practice and Feedback

Writing is a skill that improves with practice. The more you write, the better you will become. Set aside time each day to practice writing essays, paragraph by paragraph. This consistent practice will help you develop your writing skills and grow more confident in expressing your ideas.

Seek feedback from your teachers, peers, or mentors. Constructive criticism can help you identify areas for improvement and provide valuable insights into your writing. Take their suggestions into consideration and use them to refine your writing style and structure.

• Set writing goals for yourself and track your progress. Whether it’s completing a certain number of essays in a week or improving your introductions, having specific goals will keep you motivated and focused on your writing development.
• Read widely to expand your vocabulary and expose yourself to different writing styles. The more you read, the more you will learn about effective writing techniques and ways to engage your readers.
• Revise and edit your essays carefully. Pay attention to sentence structure, grammar, punctuation, and spelling. A well-polished essay will demonstrate your attention to detail and dedication to producing high-quality work.

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The Ultimate Guide to the 5-Paragraph Essay

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• M.Ed., Education Administration, University of Georgia
• B.A., History, Armstrong State University

A five-paragraph essay is a prose composition that follows a prescribed format of an introductory paragraph, three body paragraphs, and a concluding paragraph, and is typically taught during primary English education and applied on standardized testing throughout schooling.

Learning to write a high-quality five-paragraph essay is an essential skill for students in early English classes as it allows them to express certain ideas, claims, or concepts in an organized manner, complete with evidence that supports each of these notions. Later, though, students may decide to stray from the standard five-paragraph format and venture into writing an  exploratory essay  instead.

Still, teaching students to organize essays into the five-paragraph format is an easy way to introduce them to writing literary criticism, which will be tested time and again throughout their primary, secondary, and further education.

Writing a Good Introduction

The introduction is the first paragraph in your essay, and it should accomplish a few specific goals: capture the reader's interest, introduce the topic, and make a claim or express an opinion in a thesis statement.

It's a good idea to start your essay with a hook (fascinating statement) to pique the reader's interest, though this can also be accomplished by using descriptive words, an anecdote, an intriguing question, or an interesting fact. Students can practice with creative writing prompts to get some ideas for interesting ways to start an essay.

The next few sentences should explain your first statement, and prepare the reader for your thesis statement, which is typically the last sentence in the introduction. Your  thesis sentence  should provide your specific assertion and convey a clear point of view, which is typically divided into three distinct arguments that support this assertation, which will each serve as central themes for the body paragraphs.

Writing Body Paragraphs

The body of the essay will include three body paragraphs in a five-paragraph essay format, each limited to one main idea that supports your thesis.

To correctly write each of these three body paragraphs, you should state your supporting idea, your topic sentence, then back it up with two or three sentences of evidence. Use examples that validate the claim before concluding the paragraph and using transition words to lead to the paragraph that follows — meaning that all of your body paragraphs should follow the pattern of "statement, supporting ideas, transition statement."

Words to use as you transition from one paragraph to another include: moreover, in fact, on the whole, furthermore, as a result, simply put, for this reason, similarly, likewise, it follows that, naturally, by comparison, surely, and yet.

Writing a Conclusion

The final paragraph will summarize your main points and re-assert your main claim (from your thesis sentence). It should point out your main points, but should not repeat specific examples, and should, as always, leave a lasting impression on the reader.

The first sentence of the conclusion, therefore, should be used to restate the supporting claims argued in the body paragraphs as they relate to the thesis statement, then the next few sentences should be used to explain how the essay's main points can lead outward, perhaps to further thought on the topic. Ending the conclusion with a question, anecdote, or final pondering is a great way to leave a lasting impact.

Once you complete the first draft of your essay, it's a good idea to re-visit the thesis statement in your first paragraph. Read your essay to see if it flows well, and you might find that the supporting paragraphs are strong, but they don't address the exact focus of your thesis. Simply re-write your thesis sentence to fit your body and summary more exactly, and adjust the conclusion to wrap it all up nicely.

Practice Writing a Five-Paragraph Essay

Students can use the following steps to write a standard essay on any given topic. First, choose a topic, or ask your students to choose their topic, then allow them to form a basic five-paragraph by following these steps:

• Decide on your  basic thesis , your idea of a topic to discuss.
• Decide on three pieces of supporting evidence you will use to prove your thesis.
• Write an introductory paragraph, including your thesis and evidence (in order of strength).
• Write your first body paragraph, starting with restating your thesis and focusing on your first piece of supporting evidence.
• End your first paragraph with a transitional sentence that leads to the next body paragraph.
• Write paragraph two of the body focussing on your second piece of evidence. Once again make the connection between your thesis and this piece of evidence.
• End your second paragraph with a transitional sentence that leads to paragraph number three.
• Repeat step 6 using your third piece of evidence.
• Begin your concluding paragraph by restating your thesis. Include the three points you've used to prove your thesis.
• End with a punch, a question, an anecdote, or an entertaining thought that will stay with the reader.

Once a student can master these 10 simple steps, writing a basic five-paragraph essay will be a piece of cake, so long as the student does so correctly and includes enough supporting information in each paragraph that all relate to the same centralized main idea, the thesis of the essay.

Limitations of the Five-Paragraph Essay

The five-paragraph essay is merely a starting point for students hoping to express their ideas in academic writing; there are some other forms and styles of writing that students should use to express their vocabulary in the written form.

According to Tory Young's "Studying English Literature: A Practical Guide":

"Although school students in the U.S. are examined on their ability to write a  five-paragraph essay , its  raison d'être  is purportedly to give practice in basic writing skills that will lead to future success in more varied forms. Detractors feel, however, that writing to rule in this way is more likely to discourage imaginative writing and thinking than enable it. . . . The five-paragraph essay is less aware of its  audience  and sets out only to present information, an account or a kind of story rather than explicitly to persuade the reader."

Students should instead be asked to write other forms, such as journal entries, blog posts, reviews of goods or services, multi-paragraph research papers, and freeform expository writing around a central theme. Although five-paragraph essays are the golden rule when writing for standardized tests, experimentation with expression should be encouraged throughout primary schooling to bolster students' abilities to utilize the English language fully.

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This form of writing goes by different names. Maybe you've heard some of them before: "The Basic Essay," "The Academic Response Essay," "The 1-3-1 Essay." Regardless of what you've heard, the name you should remember is "The Easy Essay."

Once you are shown how this works--and it only takes a few minutes--you will have in your hands the secret to writing well on almost any academic assignment. Here is how it goes.

Secret #1—The Magic of Three

Three has always been a magic number for humans, from fairy tales like "The Three Little Pigs" to sayings like “third time’s a charm.” Three seems to be an ideal number for us--including the academic essay. So whenever you are given a topic to write about, a good place to begin is with a list of three. Here are some examples (three of them, of course):

Topic : What are the essential characteristics of a good parent? Think in threes and you might come up with:

• unconditional love 

Certainly, there are more characteristics of good parents you could name, but for our essay, we will work in threes.

Here's a topic that deals with a controversial issue:

Topic : Should women in the military be given frontline combat duties?

• The first reason that women should be assigned to combat is equality. 
• The second reason is their great teamwork. 
• The third reason is their courage.

As you see, regardless of the topic, we can list three points about it. And if you wonder about the repetition of words and structure when stating the three points, in this case, repetition is a good thing. Words that seem redundant when close together in an outline will be separated by the actual paragraphs of your essay. So in the essay instead of seeming redundant they will be welcome as signals to the reader of your essay’s main parts.

Finally, when the topic is an academic one, your first goal is the same: create a list of three.

Topic: Why do so many students fail to complete their college degree?

• First, students often...
• Second, many students cannot...
• Finally, students find that...

Regardless of the reasons you might come up with to finish these sentences, the formula is still the same.

Secret #2: The Thesis Formula

Now with your list of three, you can write the sentence that every essay must have—the thesis, sometimes called the "controlling idea," "overall point," or "position statement." In other words, it is the main idea of the essay that you will try to support, illustrate, or corroborate.

Here’s a simple formula for a thesis: The topic + your position on the topic = your thesis.

Let’s apply this formula to one of our examples:

Topic: Essential characteristics of a good parent Your Position: patience, respect, love Thesis: The essential characteristics of a good parent are patience, respect, and love.

As you see, all we did was combine the topic with our position/opinion on it into a single sentence to produce the thesis: The essential characteristics of a good parent are patience, respect, and love.

In this case, we chose to list three main points as part of our thesis. Sometimes that’s a good strategy. However, you can summarize them if you wish, as in this example:

Topic: Women in combat duty in the military Your Position: They deserve it Thesis: Women deserve to be assigned combat duty in the military.

This type of thesis is shorter and easier to write because it provides the overall position or opinion without forcing you to list the support for it in the thesis, which can get awkward and take away from your strong position statement. The three reasons women deserve to be assigned combat duties--equality, teamwork, courage--will be the subjects of your three body paragraphs and do not need to be mentioned until the body paragraph in which they appear.

Secret #3: The 1-3-1 Outline

With your thesis and list of three main points, you can quickly draw a basic outline of the paragraphs of your essay. You’ll then see why this is often called the 1-3-1 essay.

• Supporting Evidence for Claim 1    
• Supporting Evidence for Claim 2
• Supporting Evidence for Claim 3

The five-paragraph essay consists of one introduction paragraph (with the thesis at its end), three body paragraphs (each beginning with one of three main points) and one last paragraph—the conclusion. 1-3-1.

Once you have this outline, you have the basic template for most academic writing. Most of all, you have an organized way to approach virtually any topic you are assigned.

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Guide on How to Write a 5 Paragraph Essay Effortlessly

What is a 5-paragraph Essay

5-paragraph essay is a common format used in academic writing, especially in schools and standardized tests. This type of essay is structured into five distinct sections: an introduction, three body paragraphs, and a conclusion. The introduction serves to present the main topic and ends with a thesis statement, which outlines the primary argument or points that will be discussed. This format is favored because it provides a clear and organized way to present information and arguments.

The three body paragraphs each focus on a single point that supports the thesis statement. Each paragraph begins with a topic sentence that introduces the main idea of the paragraph, followed by supporting details, examples, and evidence. This structured approach helps the writer stay on topic and provides the reader with a clear understanding of the arguments being made. The consistency in structure also aids in the logical flow of the essay, making it easier for the reader to follow and comprehend the writer's points.

The conclusion, the final paragraph, summarizes the main points discussed in the essay and restates the thesis in a new way. It provides closure to the discussion and reinforces the essay's main argument. The 5-paragraph essay format is an effective tool for teaching students how to organize their thoughts and present them clearly and logically. It is a foundational skill that serves as a building block for more complex writing tasks in the future.

Guide on How to Write a 5 Paragraph Essay

Writing a 5-paragraph essay becomes manageable if you follow these simple and effective tips below from our admission essay writing service :

1. Plan Before You Write: Before you start writing, create an outline to organize your thoughts and ensure a logical flow of ideas. This will help you stay on track and cover all your points. Draft an outline with headings for the introduction, each body paragraph, and the conclusion. Under each heading, jot down the main points and supporting details.

2. Focus on Main Points : Stick to your main arguments and avoid adding unnecessary information. This keeps your essay clear and easy to understand. If your thesis is about the benefits of exercise, each body paragraph should discuss a specific benefit, such as improved health, increased energy, or better mood.

3. Maintain a Smooth Flow : Use transition words to link your paragraphs and ideas. This helps the reader follow your argument seamlessly.

Examples : "Furthermore," "In addition," "Moreover," "On the other hand," "In conclusion."

Example Sentence : "In addition to improving physical health, exercise also enhances mental well-being."

4. Provide Strong Evidence: Use facts, examples, and quotes to back up your arguments. This makes your essay more convincing and credible.

Example : "According to a study by the World Health Organization, regular physical activity can reduce the risk of chronic diseases by up to 30%."

5. Vary Your Sentence Structure : Mix short and long sentences to keep your writing engaging. This helps maintain the reader's interest and makes your essay more dynamic.

6. Proofread and Revise : Review your essay for grammar mistakes, spelling errors, and unclear sentences. Make necessary revisions to improve clarity and coherence. : After writing your essay, take a break and then read it again. This helps you spot mistakes you might have missed initially.

7. Stay Focused on Your Thesis: Ensure that all your paragraphs support your thesis statement. If your thesis is about the importance of education, every paragraph should relate to how education impacts individuals and society.

8. Manage Your Time: Allocate specific times for planning, writing, and revising your essay. This helps you stay organized and avoid last-minute stress. For example, spend 10 minutes outlining, 30 minutes writing, and 10 minutes proofreading for a 50-minute essay task.

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5 Paragraph Essay Format

The five-paragraph essay format is designed to provide a clear and straightforward structure for presenting ideas and arguments. This format is broken down into an introduction, three body paragraphs, and a conclusion, each serving a specific purpose in the essay.

Types of 5 Paragraph Essay 

There are several types of five-paragraph essays, each with a slightly different focus or purpose. Here are some of the most common types of five-paragraph essays:

• Narrative essay : A narrative essay tells a story or recounts a personal experience. It typically includes a clear introductory paragraph, body sections that provide details about the story, and a conclusion that wraps up the narrative.
• Descriptive essay: A descriptive essay uses sensory language to describe a person, place, or thing. It often includes a clear thesis statement that identifies the subject of the description and body paragraphs that provide specific details to support the thesis.
• Expository essay: An expository essay offers details or clarifies a subject. It usually starts with a concise introduction that introduces the subject, is followed by body paragraphs that provide evidence and examples to back up the thesis, and ends with a summary of the key points.
• Persuasive essay: A persuasive essay argues for a particular viewpoint or position. It has a thesis statement that is clear, body paragraphs that give evidence and arguments in favor of it, and a conclusion that summarizes the important ideas and restates the thesis.
• Compare and contrast essay: An essay that compares and contrasts two or more subjects and looks at their similarities and differences. It usually starts out simply by introducing the topics being contrasted or compared, followed by body paragraphs that go into more depth on the similarities and differences, and a concluding paragraph that restates the important points.

Don’t forget, you can save time and reduce the stress of academic assignments by using our research paper writing services to help you.

5 Paragraph Essay Example Topics

Choosing a specific and interesting topic can make your essay stand out. Here are 20 more engaging essay topics that provide a good starting point for your 5-paragraph paper:

• Why Is Recycling Important for Our Planet?
• The Day I Met My Best Friend
• How Does Playing Sports Benefit Children?
• What Are the Challenges of Being a Teenager Today?
• A Time I Made a Difficult Decision
• My Most Embarrassing Moment
• How Can We Encourage People to Read More?
• How I Spent My Last Summer Vacation
• The Best Gift I Ever Received
• What Makes a Good Friend?
• My Experience Learning a New Skill
• How Do Video Games Affect Our Brains?
• Why Is It Important to Learn About Different Cultures?
• The Day I Got My First Pet
• How Can Schools Better Prepare Students for the Future?
• An Adventure I Will Never Forget
• A Time I Helped Someone in Need
• What Are the Pros and Cons of Remote Work?
• The Most Interesting Person I Have Met
• How Does Peer Pressure Affect Our Decisions?

General Grading Rubric for a 5 Paragraph Essay

The following is a general grading rubric that can be used to evaluate a five-paragraph essay:

Based on the points discussed, your paper needs to show a good grasp of the topic, clear structure, strong writing skills, and critical thinking. Teachers use this rubric to assess essays comprehensively and give feedback on what you do well and where you can improve. If you want to simplify meeting your professors' expectations, you can buy an essay from our experts and see how it can ease your academic life!

Five Paragraph Essay Examples

Final thoughts.

Writing a five-paragraph essay might seem challenging at first, but it doesn't have to be difficult. By following these simple steps and tips, you can break down the process into manageable parts and create a clear, concise, and well-organized essay.

Start with a strong thesis statement, use topic sentences to guide your paragraphs, and provide evidence and analysis to support your ideas. Remember to revise and proofread your work to ensure it is error-free and coherent. With time and practice, you'll be able to write a five-paragraph essay with ease and confidence. Whether you're writing for school, work, or personal projects, these skills will help you communicate your ideas effectively!

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Is a 5 Paragraph Essay 500 Words?

How long is a five-paragraph essay, how do you write a 5 paragraph essay.

is an expert in nursing and healthcare, with a strong background in history, law, and literature. Holding advanced degrees in nursing and public health, his analytical approach and comprehensive knowledge help students navigate complex topics. On EssayPro blog, Adam provides insightful articles on everything from historical analysis to the intricacies of healthcare policies. In his downtime, he enjoys historical documentaries and volunteering at local clinics.

• Updated definition, writing tips and format
• Added FAQs and topics
• Secrets of the Five-Paragraph Essay | UMGC Effective Writing Center . (n.d.). University of Maryland Global Campus. https://www.umgc.edu/current-students/learning-resources/writing-center/writing-resources/writing/secrets-five-paragraph-essay#:~:text=The%20five%2Dparagraph%20essay%20consists  
• Outline for a Five-Paragraph Essay . (n.d.). https://www.bucks.edu/media/bcccmedialibrary/pdf/FiveParagraphEssayOutlineJuly08_000.pdf  

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Five Paragraph Essay

A Guide to Writing a Five-Paragraph Essay

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How To Write A Strong Body Paragraph

The five-paragraph essay is a fundamental writing technique, sometimes called "The Basic Essay," "The Academic Response Essay," or the "1-3-1 Essay." 

No matter what you call it, understanding this format is key to organizing your thoughts clearly and effectively. Once you learn the structure, writing essays for any academic subject becomes much easier. 

In this guide, we'll walk you through each part of the five-paragraph essay, showing you how to create strong introductions, develop your ideas in body paragraphs, and conclude with impact. With these tips, you'll be ready to tackle any writing assignment with confidence. 

So let’s get started!

• 1. What is a 5 Paragraph Essay? 
• 2. Steps to Write a Five-Paragraph Essay
• 3. 5 Paragraph Essay Examples
• 4. 5 Paragraph Essay Topics

What is a 5 Paragraph Essay? 

A five-paragraph essay is a structured format of essay writing that consists of one introductory paragraph, three body paragraphs, and one concluding paragraph. It is also known by several other names, including Classic Essay, Three-Tier Essay, Hamburger Essay, and One-Three-One Essay. 

This type of essay format is commonly taught in middle and high school and is mainly used for assignments and quick writing exercises. The five-paragraph essay is designed to help writers organize their thoughts clearly and logically, making it easier for readers to follow the argument or narrative.

The structure is popular because it works for almost all types of essays . Whether you're writing a compare and contrast or argumentative essay , this format helps you organize your thoughts clearly. It's best for topics that can be explained well in just five paragraphs.

Steps to Write a Five-Paragraph Essay

Writing a five-paragraph essay involves clear and structured steps to effectively communicate your ideas. Here’s how to do it:

Step 1: Understand the Assignment 

Knowing your topic before you start writing is really important. The first thing you need to do is figure out what your essay is supposed to be about. This is usually called the thesis statement or main idea. 

If your teacher didn’t give you a specific topic, you should pick something that you can talk about enough to fill five paragraphs.

Here are some tips to help you understand your topic:

• Think about what interests you or something you already know a bit about. It’s easier to write when you care about the topic.
• Read through the assignment carefully to see if there are any specific instructions or questions you need to answer.
• If you’re not sure about your topic, try talking it over with someone else—a friend, family member, or even your teacher—to get some ideas. You can also find some good essay ideas by checking out our essay topics blog. 

Once you’ve picked a topic, take a moment to write down what you already know about it. This can help you see if you need to do more research or if you have enough to start writing. Understanding your topic well from the start makes the writing process much smoother. 

Step 2: Outline Your Essay

Creating an outline is like making a plan for your essay before you start writing. An essay outline helps you organize your ideas and decide what you want to say in each part of your essay. 

Your outline acts as a guide that reveals any gaps or the need for rearranging ideas. It functions like a roadmap that guides you through writing your essay, so it should be easy for you to understand and follow.

To create a good outline think about the most important things you want to say about your topic. These will be your main ideas for each body paragraph . 

Here’s a simple 5-paragraph essay outline template:

Step 3: Write the Introduction

Writing the essay introduction is like inviting someone into your essay—it sets the tone and tells them what to expect. Here’s how to craft a strong introduction:

• First, start with a hook . This could be something surprising or interesting, like a shocking fact or a thought-provoking question. It’s meant to grab your reader's attention right away, making them curious about what you’re going to say next.
• Next, provide some background information about your topic. This helps your reader understand the context of your essay. Think of it like setting the stage before a play—you want to give enough information so that your audience knows what’s going on.
• Finally, write your thesis statement . This is the main point of your essay summed up in one clear sentence. It tells your reader what you’re going to argue or explain throughout the rest of your essay.

For Example:

Step 4: Develop Body Paragraphs

Developing body paragraphs is like building the main part of your essay—it’s where you explain your ideas in detail. Here’s how to do it effectively:

First, each body paragraph should have one main idea that supports your thesis. This main idea is introduced in the topic sentence , which is like a mini-thesis for that paragraph. It tells your reader what the paragraph is going to be about.

After you introduce your main idea, you need to support it with evidence. These could be examples, facts, or explanations that help prove your point. Imagine you’re explaining your idea to a friend—you’d give reasons and examples to make them understand and believe what you’re saying.

Step 5: Transition Between Paragraphs

Smooth transitions between paragraphs are like bridges that connect one idea to the next in your essay. They help your reader follow your thoughts easily and see how each point relates to the overall argument.

To use transitions effectively, think about how each paragraph connects to the next. If you're moving from talking about one idea to another that contrasts or supports it, use transition words like "however," "similarly," or "on the other hand." These words signal to your reader that you're shifting to a new point while still maintaining the flow of your argument.

Step 6: Write the Conclusion

Writing an essay conclusion is like wrapping up a conversation. You want to remind the reader of what you've discussed and leave them with something to think about. Here’s how to do it:

• Start by summarizing the main points of your essay. Go over the key ideas from each of your body paragraphs. This reminds the reader of what you’ve covered without going into too much detail again.
• Next, restate your thesis in different words. This helps reinforce your main argument and shows that you’ve supported it throughout your essay. 
• Finally, end with a final thought or recommendation . This could be a call to action, a suggestion, or a thought-provoking statement that leaves the reader thinking about your topic.

For Example :

Step 7: Revise and Edit

Revising and editing your essay is like giving it a final polish to make sure everything is clear and correct. Here are some tips for revising and editing:

• Take a Break: After writing your essay, take a short break before you start revising. This helps you see your work with fresh eyes.
• Read Aloud: Reading your essay out loud can help you catch errors and awkward sentences.
• Ask for Feedback: Sometimes, another person can spot mistakes you’ve overlooked. Ask a friend or family member to read your essay and give feedback.
• Be Patient: Don’t rush the revision process. Take your time to ensure your essay is the best it can be.

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5 Paragraph Essay Examples

Here is some free 5-paragraph essay example pdfs for you to download and get an idea of the format of this type of essay.

5 Paragraph Essay Benefits of Exercise

5 Paragraph Essay on Technology

5 Paragraph Essay on What Makes A Good Friend

5 Paragraph Essay on Cell Phones in School

5 Paragraph Essay on Climate Change

5 Paragraph Essay about Sports

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5 Paragraph Essay about Love

5 Paragraph Essay Topics

Here are some common and trending topics for 5-paragraph essays:

• Discuss needed changes to improve the education system.
• Analyze the effects of globalization on society.
• Explore ways to promote sustainable practices.
• Address issues of healthcare equity.
• Examine progress and challenges in gender equality.
• Discuss the impact of immigration policies.
• Explore needed changes in the criminal justice system.
• Analyze ethical dilemmas in science and medicine.
• Discuss the effects of global pandemics.
• Explore the importance of diversity and inclusion.

So, learning the five-paragraph essay isn't just about school, it's about building strong communication skills that will serve you well in any writing task. By following this structured approach—you'll be writing with confidence in no time.

Now that you've got the basics down, don't hesitate to put them into practice. Whether you're tackling assignments for school or exploring new topics on your own, these skills will help you organize your thoughts.

And if you ever need a helping hand, visit our website and request " write my essay ." Our expert writers are ready to assist with any type of assignment, from college essays to research papers. Don't wait—take your writing to the next level today!

Frequently Asked Questions

How long is a five-paragraph essay.

A five-paragraph essay typically ranges from 500 to 1000 words in total length. The essay word count may vary based on the specific requirements provided by the assignment or academic standards set by the instructor.

Is a 5 paragraph essay 500 words?

Not necessarily. The word count of a five-paragraph essay can vary widely depending on the topic, level of detail in each paragraph, and specific instructions provided by the teacher or professor. While some five-paragraph essays might be around 500 words, others could be shorter or longer.

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How to Write a 5 Paragraph Essay: Guide with Structure, Outline & Examples

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A 5-paragraph essay   is a common assignment in high school and college, requiring students to follow a standard structure. This essay format consists of five main components: an introduction paragraph, followed by 3 body paragraphs, and a final paragraph. Each paragraph serves a specific purpose and contributes to the overall coherence and organization of the essay.

Since this is one of the most popular assignments teachers give, you should be prepared to write using a five paragraph essay format. From structure and outline template to actual examples, we will explain how to write a 5 paragraph essay with ease. Follow our suggestions and you will be able to nail this task.

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FAQ About Five-Paragraph Essays

1. how long is a 5-paragraph essay.

A five-paragraph essay typically ranges from 300  to 500 words, depending on the topic and type of paper. It's important to consider the length of your essay when determining how much information you want to include in each paragraph. For shorter essays, it is best to stick to one main point per paragraph so that your essay remains concise and focused.

2. What is a 5-paragraph format?

The five-paragraph essay format is a classic structure used to organize essays and persuasive pieces. It consists of an introduction (which includes your thesis statement), 3 body paragraphs that explain each point, and a conclusion which sums up your fundamental ideas. Each paragraph should feature one main aspect, with supporting evidence discovered during research.

3. How to start a 5-paragraph essay?

The best way to start a five-paragraph essay is by writing an engaging introduction that contains your thesis statement. Your first paragraph should provide readers with some context as well as introduce your main argument. Make sure to cover at least 2 or 3 points in your thesis statement so that you have something to elaborate on further in your text.

Daniel Howard is an Essay Writing guru. He helps students create essays that will strike a chord with the readers.

A 5-paragraph essay is as simple as it sounds: an essay composed of five paragraphs. It's made up of five distinct sections, namely an introduction , 3 body paragraphs and a concluding section . However, a 5 paragraph essay goes beyond just creating 5 individual sections. It's a method of organizing your thoughts and making them interconnected. 

Despite its straightforward 5-paragraph format, there's more going on beneath the surface. When writing a 5-paragraph essay, you should address the main objective of each part and arrange every section properly. 

Let’s learn about each of these sections more in detail.

A five-paragraph essay structure is often compared to a sandwich that has 3 distinct layers:

As you can notice, each of these sections plays an important role in creating the overall piece.

Imagine heading out for a journey in the woods without a map. You'd likely find yourself wandering aimlessly, right? Similarly, venturing into writing an essay without a solid essay outline is like stepping into the academic jungle without a guide. Most high school and college students ignore this step for the sake of time. But eventually they end up writing a five-paragraph essay that lacks a clear organization. 

It’s impossible to figure out how to write a 5-paragraph essay without having a well-arranged outline in front. Here’s a five-paragraph essay outline example showing subsections of each major part. 

5 Paragraph Essay Outline Example

When creating an outline for 5-paragraph essay, begin by identifying your topic and crafting a thesis statement. Your thesis statement should encapsulate your main argument. Identify 3 ideas that support your thesis to lay the foundation of your body section. For each point, think about examples and explanations that will help convince the reader of your perspective. Finally, plan what you will include in the concluding section. 

Throughout this process, remember that clarity and organization are key. While it's not necessary for your 5-paragraph outline to be "perfect", it is indeed important for it to be arranged logically. 

Below, you can spot an example of an outline created based on these instructions.

There is nothing difficult about writing a 5-paragraph essay. All you need to do is to just start creating the first sentence. But for most of us, it;s easier said than done. For this reason, we prepared informative step-by-step guidelines on how to write a 5-paragraph essay that your teacher will like. 

As we navigate these stages, remember that good writing isn't a destination, it's a process. So grab your notebook (or laptop) and let's dive into the art of crafting your five-paragraph essay.

>> Learn more: How to Write an Essay

The initial step is to make sure you have a full grasp of your assignment instructions. How well you understand the given guidelines can either make or break your 5-paragraph essay. Take a few minutes to read through your instructor’s requirements and get familiar with what you're supposed to do: 

Understanding these crucial details will help you remain on course.

Now that you have a good idea of your assignment, it’s time to roll up your sleeves and start researching. Spend some quality time gathering relevant resources to get acquainted with the discussed topic. Make sure you don;t refer to outdated resources. Always give a preference to credible, recent sources.

Read these sources carefully and jot down important facts – this is what will form the basis of your essay's body section. Also, you will need to save the online sources to cite them properly.

We can’t stress enough: your thesis statement will guide your entire essay. Write 1-2 sentences that convey your underlying idea. Keep in mind that your thesis  must be succinct. There is no need for long introductions or excessive details at this point.

A five-paragraph essay outline shows how your paper will be arranged. This visual structure can be represented using bullet points or numbers. You can come up with another format. But the main idea is to prepare a plan you are going to stick to during the writing process. 

Did you know that you can send an outline to professionals and have your essay written according to the structure. Order essay from academic experts should you need any assistance.

To start a 5-paragraph essay, compose an attention-grabbing statement, such as a question or fact. This is also known as an essay hook – an intriguing opening sentence. Its goal is to spark curiosity and draw your reader into your topic.

Next, you need to establish a background and show what;s under the curtains. Write 1-2 contextual sentences helping your reader understand the broad issue you're about to discuss.

Your 5-paragraph essay introduction won’t be complete without a thesis statement – the heart of your writing. This 1 or 2-sentence statement clearly expresses the main point you will develop throughout your essay. Make sure your thesis is specific, debatable, and defensible.

>> Read more: How to Start an Essay

A body section of a standard 5-paragraph essay layout comprises 3 paragraphs. Each body paragraph should contain the most important elements of the discussion:  

Begin your body paragraph by introducing a separate aspect related to your thesis statement. For example, if you are writing about the importance of physical activity, your body paragraph may start this way: 

Don’t just make a bold statement. You will need to expand on this idea and explain it in detail. You should also incorporate facts, examples, data, or quotes that back up your topic sentence. Your evidence should sound realistic. Try to draw the examples from personal experience or  recent news. On top of that, you should analyze how this evidence ties back to your overall argument. 

It’s not a good idea to finish your body paragraph just like that. Add essay transition words to keep your five-paragraph paper cohesive. 

>> Read more: How to Write a Body Paragraph

Wrapping up your 5-paragraph essay might seem like a breeze after developing your introductory and body parts. Yet, it's crucial to ensure your conclusion is equally impactful. Don't leave it to the reader to join the dots – restate your thesis statement to reinforce your main argument. Follow this by a brief recap of the 2-3 key points you've discussed in your essay.

The last taste should be the best, so aim to end your 5-paragraph essay on a high note. Craft a compelling closing sentence that underscores the importance of your topic and leaves your reader considering future implications.

>> Learn more: How to Write a Conclusion for an Essay

Your 5-paragraph essay should be up to scratch now. However, double-check your work for any errors or typos. It's worth revising your essay at least twice for maximum impact. Our practice shows that revising your essay multiple times will help you refine the arguments, making your piece more convincing.

As you proofread, make sure the tone is consistent, and each sentence contributes something unique to the overall point of view. Also, check for spelling and grammar errors. 

Once you're happy with your 5-paragraph essay, submit it to your teacher or professor.

Students can ease their life by exploring a sample five paragraph essay example shared by one the writers. Consider buying a college essay if you want your homework to be equally good.

Here’re some bonus tips on how to write a good 5-paragraph essay:

Writing a five-paragraph essay may seem challenging at first, but with practice and determination it can become a piece of cake. Don’t forget to use your secret power – an outline, so that you have a clear idea of what points to cover in each paragraph. Make sure that you stick to the right format and cite your sources consistently. With these tips and 5 paragraph essay examples, you will be able to write an effective piece.

If any questions pop out, do not hesitate to leave the comments below or contact our professional writing service for expert assistance with your “ write an essay for me ” challenge.

• Introduction: This initial paragraph should introduce the main topic and tell what will be discussed further in the essay.
• Body: This part consists of three body paragraphs, each focusing on a specific aspect of your subject.
• Conclusion: The final paragraph rounds off the main points and offers key takeaways.
• Hook: Spark the reader's interest.
• Brief background: Provide a general context or background.
• Thesis statement: State the main argument or position.
• Topic sentence: Introduce the main point of this paragraph.
• Supporting evidence/example 1: Provide data, examples, quotes, or anecdotes supporting your point.
• Analysis: Explain how your evidence supports your thesis.
• Transition: Tie the paragraph together and link to the next paragraph.
• Supporting evidence/example 2 : Provide further supporting evidence.
• Analysis: Discuss how the evidence relates back to your thesis.
• Transition: Summarize the point and smoothly shift to the next paragraph.
• Topic sentence: Present the main idea of this paragraph.
• Supporting evidence/example 3: Offer additional support for your thesis.
• Analysis: Show how this backs up your main argument.
• Transition: Sum up and signal the conclusion of the body section.
• Thesis reiteration: Revisit your main argument accounting for the evidence provided.
• Summary: Briefly go over the main points of your body paragraphs.
• Final thoughts: Leave the reader with a parting thought or question to ponder.
• What’s your topic? Do you need to choose one yourself?
• What  essay type  do you need to write – argumentative , expository or informative essay ?
• What’s your primary goal – persuade, analyze, descibe or inform?
• How long should an essay be ? Is there any specific word count?
• Topic sentence  
• Detailed explanation
• Supporting evidence from credible sources
• Further exploration of examples
• Transition.
• Be clear and concise Avoid fluff and filler. Every sentence should contribute to your argument or topic.
• Keep paragraphs focused Each paragraph should be dedicated to an individual point or idea.
• Use strong evidence To support your points, use solid evidence. This could be statistics, research findings, or relevant quotes from experts.
• Use active voice Active voice makes writing direct and dynamic. It puts the subject of the sentence in the driver's seat, leading the action.
• Avoid first-person pronouns To maintain a formal, academic tone, try to avoid first-person pronouns (I, me, my, we, our). First-person pronouns are acceptable only when writing a narrative essay , personal statement or college application essay .

What Is a 5-Paragraph Essay: Definition

5-paragraph essay structure , 5-paragraph essay outline & template example , how to write a 5-paragraph essay outline , how to write a 5 paragraph essay step-by-step, 1. understand the task at hand , 2. research and take notes , 3. develop your thesis statement, 4. make an outline , 5. write an introduction paragraph , 6. create a body part , 7. write a concluding paragraph , 8. review and revise, 5 paragraph essay example, extra 5-paragraph writing tips , final thoughts on how to write a five paragraph essay .

A staggering report by the World Health Organization reveals that poor diet contributes to more disease than physical inactivity, alcohol, and smoking combined. In our fast-paced world, convenience often trumps health when it comes to food choices. With an alarming rise in obesity and diet-related illnesses, a closer look at our eating habits is more critical than ever. For this reason, adopting a healthy diet is essential for individual health, disease prevention, and overall wellbeing.

Regular exercise is essential for maintaining a healthy lifestyle. 

First and foremost, a healthy diet plays a pivotal role in maintaining individual health and vitality. A balanced diet, rich in fruits, vegetables, whole grains, and lean proteins, provides the essential nutrients our bodies need to function effectively. A research study by the American Heart Association found that individuals who adhered to a healthy eating pattern had a 25% lower risk of developing cardiovascular disease. This data emphasizes that a proper diet is not just about staying in shape. It directly affects critical health outcomes, impacting our susceptibility to serious health conditions like heart disease. While the implications of diet on personal health are substantial, the preventative power of healthy eating against disease is equally noteworthy, as we shall explore next.

As was outlined in this essay, a balanced diet isn't just a lifestyle choice, but an essential tool for maintaining individual health, preventing disease, and promoting overall wellbeing. Healthy eating directly affects our personal health, its power in disease prevention, and how it contributes to a sense of wellness. What we consume profoundly impacts our lives. Therefore, a commitment to healthy eating isn't merely an act of self-care; it's a potent declaration of respect for the life we've been given.

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Template for 5-Paragraph Essay Outline

Essay Template Description :

It's important that students write an outline before they begin their essay writing. A solid outline is key to ensuring students  follow the standard essay-writing structure and stay on topic.

This is a simple template I have my students complete before they begin writing their five-paragraph academic essay.

The essay template includes sections for the following.

• Thesis statement
• Supporting Detail
• I have put the third supporting detail section in each body paragraph in brackets , since it may not be needed if the first two points support the topic sentence sufficiently (this is my opinion).
• I have not put a blank field for the conclusion section, since the student is merely meant to restate the thesis statement in a fresh way and include a  So What? idea that indicates why the topic is important.

Feel free to edit the essay template as you'd like.

Essay Template Download :  five-paragraph-essay-outline-template.docx

Essay Template Preview :

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9 comments on “ Template for 5-Paragraph Essay Outline ”

Thank you. Love this template for my students.

Thank you. I also love this template for my students

Thank you this template is very good..and I understand now

Thank you for the outline…. would you consider providing examples of topics ? Just a thought… Once again, thank you

Here are some topics you could write an essay on: https://www.englishcurrent.com/speaking/discussion-speech-topics-esl/

i think it is very good. but like someone else said would you give more examples, but thank you verry much

so this is where my teacher gets her lesson plans. XD thanks this will help when i constantly lose my work.

This is a great template for 5-paragraph essay outlines. It is easy to follow and provides a good starting point for writing your own essays.

They are over 100 fields of fun and exciting types of science including Biology, Archeology chemistry and SO much more. However, the one field of science that really fascinates me, is Astronomy. Ever since I was like six years old I was always so curios about our world, the other planets, black holes, and how things worked and formed in space, which is what really got me in to space. Then I realized there were types of scientist that study this particular branches of science, and they are called Astronomers. Astronomy is defined as the celestial objects, space, and the physical world as a whole. Astronomy is actually one of the OLDEST fields of science. Through out the years, people have utilized astronomy to learn about the universe, our own planet, and even make predictions about life its self. Understanding astronomy requires a great understanding of it’s origins, and the numerous groups and cultures that used it, which is why astronomers usually work for university’s or research institutions. In order to succeed in Astronomy you will need a PHD in physics and math, analytical thinking skills and the ability to think clearly using logic and reasoning. Somethings that i find inserting about Astronomy is the physics behind it and like how things are formed/created, like stars, black holes, the Big-Bang theory, galaxy’s, and so much more. Last but mot least, Astronomy actually makes a huge deference in our would because with out Astronomers to build up theory’s and Laws, there is so much stuff that we would not know, and will be left a mystery. In addition, Even our ideas about the future of Earth were shaped by astronomers’ observations of the runaway global greenhouse effect on Venus — and what it meant for climate change on our own planet. We have also been exposed to Astronomy since birth as it determines our Zodiac signs.

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Subject Material

How to Write a Five-Paragraph Essay

The five-paragraph essay is often assigned to students to help them in this process. A good five-paragraph essay is a lot like a triple-decker burger, and it is therefore often called the hamburger essay. It requires a clear introduction and conclusion (the top and bottom bun) that hold the main body of the essay (the burger and all the juicy stuff) in place.

Before you start writing an essay, you need to get organised. Read through the task you are given several times, underlining important words that tell you what you are expected to do. Pay special attention to the verbs in the task you are given ('discuss', 'summarise', 'give an account of', 'argue'…). Make sure you do what you are asked and that you answer the whole question, not just parts of it.

Introduction

The introduction to a text is extremely important. A good introduction should accomplish three things:

• Firstly, try to capture the reader’s interest and create a desire to read on and learn more. There are many ways to achieve this. For example, you can start with a relevant quotation from a famous person or a short anecdote. You could also present some interesting statistics, state a startling fact, or simply pose a challenging question.
• Secondly, provide the reader with the necessary information to understand the main body of the text. Explain what the paper is about and why this topic is important. What is the specific focus of this paper? Include background information about your topic to establish its context.
• Thirdly, present your approach to the topic and your thesis statement. The thesis statement is the main idea of the essay expressed in a single sentence. Make sure your thesis statement comes out clearly in your introduction.

The body of the essay consists of three paragraphs, each limited to one idea that supports your thesis. Each paragraph should have a clear topic sentence: a sentence that presents the main idea of the paragraph. The first paragraph should contain the strongest argument and the most significant examples, while the third paragraph should contain the weakest arguments and examples. Include as much explanation and discussion as is necessary to explain the main point of the paragraph. You should try to use details and specific examples to make your ideas clear and convincing.

In order to create a coherent text, you must avoid jumping from one idea to the next. Always remember: one idea per paragraph. A good essay needs good transitions between the different paragraphs. Use the end of one paragraph and/or the beginning of the next to show the relationship between the two ideas. This transition can be built into the topic sentence of the next paragraph, or it can be the concluding sentence of the first.

You can also use linking words to introduce the next paragraph. Examples of linking words are: in fact, on the whole, furthermore, as a result, simply put, for this reason, similarly, likewise, it follows that, naturally, by comparison, surely, yet, firstly, secondly, thirdly …

This is your fifth and final paragraph. The conclusion is what the reader will read last and remember best. Therefore, it is important that it is well written. In the conclusion, you should summarise your main points and re-assert your main claim. The conclusion should wrap up all that is said before, without starting off on a new topic. Avoid repeating specific examples.

There are several ways to end an essay. You need to find a way to leave your reader with a sense of closure. The easiest way to do this is simply to repeat the main points of the body of your text in the conclusion, but try to do this in a way that sums up rather than repeats. Another way to do it is to answer a question that you posed in the introduction. You may also want to include a relevant quotation that throws light on your message.

A few notes before you hand in your essay

After you have finished, read through your essay with a critical eye. Does your thesis statement in the introduction match the discussion in the main body and the conclusive statements in the final paragraph? It is important that you build your text logically, so that each part of the essay supports, proves, and reflects your thesis.

You should also remember that a good writer of formal essays:

• does not use abbreviations or contractions.
• does not use first-person pronouns, such as 'I', 'me' and 'my'. It is better to make your statements more general, using 'it is commonly believed that', 'we tend to think', 'scientists argue that'…
• does not engage in personal stories. Stories about your own life experiences, or the experiences of your friends or families do not belong in academic writing.
• does not use a language which is too casual, such as sentences that begin with words like 'well', 'sure', 'now', 'yes', 'no' ...
• does not use slang. Words like 'gonna' and 'wanna' are not accepted in formal essays.
• does not start sentences with conjunctions: 'but', 'and', 'or', 'because'…”.
• uses linking words. This creates better logic and coherence in your text.

Below we have structured three short essays for you and given you the topic sentences for each paragraph. Choose one of them and write it as a full text. Add facts and reflections under each paragraph. Make sure there are good transitions between the paragraphs.

The importance of learning English

Introduction: the importance of learning English

Living in a multicultural world

International job market

A better travelling experience

The importance of a good education

Introduction: the importance of a good education

Competitive job market

Independence

Personal growth

Living in a digital world

Introduction: living in a digital world

Important for working life

Important in communication

Part of our everyday lives

Cite or use

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Structuring the Five-Paragraph Essay: Examples of Five-Paragraph Essays

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Sample of a Persuasive / Argumentative Five-Paragraph Essay

A cat is a man's best friend.

This model essay is a good example of an Argumentative (or Persuasive) Essay. 

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5-Paragraph Essay: Outline and Template

Table of Contents

The five-paragraph essay format is a straightforward method for producing an entire paper that covers all the bases.

The five-paragraph essay format is helpful for students and teachers because it provides a framework for even the most basic of papers.

Use the standard five-paragraph essay structure as a framework if you find yourself stuck while writing. Learn how to outline the the 5 paragraph essay and correctly transition paragraphs with our template. Read on!

What Is a 5-Paragraph Essay?

A standard essay format consists of five paragraphs. Writers often use the tried-and-true five-paragraph essay format as a foundation for their essays.

A 5-paragraph essay has one paragraph that introduces the topic, three that provide supporting evidence, and one that wraps up the piece.

Because of its format, this type of essay has been variously dubbed a “hamburger essay,” “one-three-one essay,” and “three-tier essay.”

There aren’t many examples of the five-paragraph essay in published works because the format is so brief. Educational assignments, like school papers or quick writing exercises, tend to favor the five-paragraph essay format.

Instead of seeing it as a distinct type of essay, see it as a tool to help you organize your thoughts as you write.

The flexibility of the five-paragraph essay format is one of its main selling points. You can use the five-paragraph essay structure to communicate clearly and logically on any topic.

Whether you’re writing an argumentative essay, a compare and contrast essay, or any other type of academic paper, its structure will stand.

How to Outline a 5-Paragraph Essay

1. know your topic.

Knowing your subject matter is essential before you even begin writing. Your thesis, or main topic, is the first step in writing any essay, including a five-paragraph essay.

2. What’s the Central Argument of Your Essay?

The thesis statement is the central argument of your essay, which you will defend or develop in the body paragraphs. A thesis bases its argument on evidence or develops it in the body’s three main body paragraphs.

If a thesis statement is specified, select one that can be explored in depth in at least five paragraphs.

A thesis statement is an introductory paragraph sentence explaining the essay’s topic. It is where writers typically provide context for their thesis. Putting your essay into a single sentence can help you better grasp it, narrow your focus, and make any necessary changes.

3. Draft a Brief Outline

Once you’ve decided on a topic, it’s a good idea to draft a brief outline for your essay. You can plan the order and structure of your essay in detail using your five-paragraph essay outline as a guide.

It should take a short time to draft an outline for a five-paragraph essay if you use the one we provide as a guide.

Tips for Creating Cohesive Paragraph Transitions

Paragraph transitions are notoriously difficult for students writing essays. If your paragraph transitions are jarring or abrupt, readers will be distracted from the flow of your writing and may even lose interest.

Using words and phrases like “however,” “similarly,” and “on the other hand” can help move from one thought to the next seamlessly.

Putting one word at the beginning of a paragraph can do a lot for the flow and consistency of your writing . Here you will find a complete dictionary of connecting words and phrases.

Template for a Five-Paragraph Essay

This helpful guide lets you know what to put in each paragraph of your five-paragraph essay outline.

In an essay, as in any piece of prose, the paragraphs serve as the workhorses of the structure. Every paragraph in a five-paragraph essay serves a specific purpose.

Here, we break down the purpose of every paragraph and offer suggestions for what to include in it.

Introductory Paragraph

There is a lot of riding in that first paragraph. A good introduction sets the stage for the essay and gives the reader a taste of what they can expect from the subject matter. Fortuitously, the same rules apply to two-paragraph introductions to five-paragraph essays.

Your thesis statement belongs in the introductory paragraph. This line should summarize the entire essay, including your argument or opinion (if any), and make it immediately evident to the reader.

The thesis statement should normally be the first phrase. If a more appealing hook is desired, it can be placed at the beginning of the essay. A hook in writing can be anything that piques the reader’s interest. It could be a surprising twist, a sense of urgency, or some good old-fashioned drama.

The introductory paragraph should also include any necessary background information for your topic. The bulk of your essay should consist of supporting arguments and evidence. But, you can provide some background information your readers might need in the introduction.

Your introductory paragraph should summarize the main points you’ll be making in the body of your essay. You shouldn’t reveal too much about the topic in the opening paragraph. Stay out of detail at the introductory phase. You’ll have plenty of time to do so in the following paragraphs.

Body Paragraphs

The “meat” of your essay consists of three body paragraphs, where you provide specific examples, evidence, and explanations to back up your thesis. Paragraphs should include each deal with a different point that adds weight to your thesis.

Each paragraph should begin with a topic sentence, which summarizes the paragraph’s topic.

Topic sentences provide an overview of the paragraph’s main idea while leaving specifics for the body paragraphs. If the topic shift from the preceding paragraph is too significant, use a transition word or phrase in the topic sentence.

Details of the paragraph should follow the topic sentence. Such evidence may form compelling arguments, empirical data, quotations from credible sources, etc.

Ensure you eliminate sentences that are irrelevant or tangential. The goal of a five-paragraph essay is conciseness. Mention only the most essential information.

Final/Concluding Paragraph

The essay is concluded with the final paragraph. You should not introduce any new evidence or support in the final paragraph. Instead, summarize and connect the points made in the preceding paragraphs. The writer should restate the thesis and summarize the three body paragraphs for the reader.

The final paragraph of your essay can also serve as a call to action, encouraging the reader to do something. This could be donating to a cause or altering behavior.

For example, If your paper is about preventing wild forest fires, your call to action could read, “Remember to obey safety laws when camping.”

In the final paragraph, you can elaborate on the topic’s significance or add your perspective. If you want to leave your readers with something to ponder, a sentence that provokes thought is ideal, such as an open-ended question.

Wrapping Up

A five-paragraph essay is an organized piece of writing . It consists of at least five paragraphs that support the essay’s central argument. It is an exciting writing technique that can be applied to various topics.

Abir Ghenaiet

Abir is a data analyst and researcher. Among her interests are artificial intelligence, machine learning, and natural language processing. As a humanitarian and educator, she actively supports women in tech and promotes diversity.

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How to Write a 5 Paragraph Essay: Outline, Example

‍ Imagine this:

You have to write your first essay, but you’re not sure where to start. You have a hundred questions , and more are coming to you every minute, but you’re afraid to ask the teacher for help.

What’s the difference between an argumentative essay and an informative essay? How will I be graded? What must I include? The list goes on. Well, first, take a breath. Before you tackle different essay varieties, grading rubrics, and the bullet points of exactly what should go in your essay, you need to make sure you understand structure. The 5 paragraph essay format is a classic example of an essay, and once you know how to create a 5 paragraph essay outline, you can write any essay that’s assigned to you.

Perfecting the art of essay writing is not only essential for acing your assignments but also for securing financial support as you transition from high school to college. A well-structured essay, such as the 5-paragraph essay, showcases your writing prowess and your ability to articulate ideas in a coherent and compelling manner. As you master the formula of a 5-paragraph essay, consider leveraging these skills to apply for scholarships. Numerous scholarships are specifically geared towards high school seniors, offering a financial launching pad for your college adventure. The skills you hone while crafting precise and impactful essays will serve you well as you embark on the exciting journey of drafting scholarship essays, each a stepping stone toward your higher education and a bright future. If you need additional support or guidance, don't hesitate to explore the " pay for an essay " options.

The 5 Paragraph Essay Outline

Don’t know the 5 paragraph essay structure? It’s pretty simple. Here’s the basic outline you should follow:

Now let’s discuss what should go in each paragraph. The following 5 paragraph essay template by our service should tell you exactly what you need to do to complete your assignment.

Paragraph 1: Introduction

In the introduction, you should provide background information on your topic. Usually, this information should be factual, especially for a history paper, but you can be creative in how you present it. The key is that you want to intrigue the reader. You want to draw the reader into your topic by creating a natural curiosity about it.

Somewhere in the middle of your introduction, you need to present the 3 main points you will discuss in your 5 paragraph essay . These 3 points are crucial for the basic essay, as you need to ensure you have enough to talk about, and it’s best to introduce them in the first paragraph. However, keep in mind that as your essays get longer, you may need to use more than 3 main points. That’s not something you should worry about now, though.

In any essay, your introductory paragraph should end with a strong thesis statement that tells readers exactly what you aim to prove. If the essay is meant only to inform, the thesis statement should clarify to readers exactly what you’re going to inform them of.

Paragraph 2: First Main Point

The second paragraph is where you begin laying out the 3 main points that you promised in your introduction. In this paragraph, the first sentence should transition from the previous paragraph to the current one. It should also clearly introduce the topic, your first main point.

The sentences that follow should provide examples and support, or evidence, for your topic . Readers should see that every example and every piece of support you provide (e.g., quotes, graphs, paraphrased information) is connected to your topic. They should never be left wondering why you included something.

Paragraph 3: Second Main Point

The third paragraph of your 5 paragraph essay is where you lay out the second main point. As the previous paragraph, it should begin with a transition and a description of the topic you’re about to discuss. Any examples or support you provide should be related to the topic at hand.

Paragraph 4: Third Main Point

The fourth paragraph is where you lay out the third main point that you promised in your essay’s introduction. Like any paragraph, it should have a transition and a topic sentence, and any examples or support should be related and interesting.

Paragraph 5: Conclusion

The last paragraph of a 5 paragraph essay — or any length should be a conclusion . It should not present new information, but it should always wrap up your discussion. One way to conclude is to summarize your 3 main points and then leave the reader with some key takeaways or a final thought about your thesis that drives your essay home.

However, your essay should not end with a cliffhanger. Remember that idea of cohesion? When the reader finishes your essay, he or she should feel like the information or argument is complete and fascinating.

Creating the 5 Paragraph Essay Graphic Organizer

Now that you understand the 5 paragraph essay format, it’s time to begin planning and writing your essay. To do that, custom writing professionals suggest using a graphic organizer. It can be a simple outline in bullet points, or it can be more visual in nature.

For example, you can create a mind map with your thesis idea — or even the whole thesis sentence — in the middle. Circle your thesis. From there, you can draw lines from the thesis outward and create new bubbles for your mind map, perhaps showing the main points you intend to discuss. Your mind map can include any information that’s helpful, and you may find that you want to expand on each main point with new bubbles.

PRODUCTION: Create a simple drawing of a mind map. Put the word “Thesis” in the middle (circled), and then put the words “Point 1,” “Point 2,” and “Point 3” around it. Draw circles around those words, and connect them to “Thesis” using lines. See example below.

Don’t spend too much time creating a graphic organizer, though. At some point, you need to start writing your 5 paragraph essay! Then the real fun begins.

The 5 Paragraph Essay Rubric

If you’re wondering how your essay will be graded, you’re not alone. While the exact rubric your teacher uses will vary, here’s a basic one that may help you see what’s expected in your essay.

Grade A: Excellent

• Both introduction and thesis are strong.
• Details and examples are strong and well organized.
• The conclusion is strong enough.
• Grammar is correct.

Grade B: Good

• Has some spelling and grammar errors.

Grade C: Fair

• The introduction is good, but the thesis is weak.
• Examples used are weak.
• The conclusion is weak.
• Has major spelling and grammar errors.

Grade D: Poor

• Introduction and thesis are weak.
• Details and examples are weak and somewhat unorganized.
• Details or examples are few.
• Does not have a conclusion.
• Has serious spelling and grammar errors.

Grade F: Unsatisfactory

• Does not contain a thesis, and introduction is weak.
• Details and examples are weak and have no clear organization, or there are none at all.

In some cases, your teacher may give you a rubric before you start your essay. If so, make sure you read it carefully and don’t be afraid to ask questions if you don’t understand something. The rubric should tell you exactly what the teacher is looking for, whether it’s a 5 paragraph essay or something much longer. To succeed with your task, please find some essay writing tips .

5 Paragraph Essay Sample

Below you can find free 5 Paragraph essay sample called " The Impact of Technology on Education ".

"In today's rapidly advancing world, technology has become an integral part of our daily lives, revolutionizing various sectors, including education. Its influence on the way we learn, teach, and interact with educational materials is undeniable. This essay examines the significant impact of technology on education, highlighting its benefits and exploring real-life examples that illustrate its transformative power.

One of the primary benefits of technology in education is the enhanced accessibility to information. The internet has brought a wealth of knowledge right to our fingertips. Students can now access a vast array of educational resources, such as e-books, online articles, and interactive learning platforms. For instance, platforms like Khan Academy provide video tutorials and practice exercises on various subjects, enabling students to learn at their own pace and revisit concepts as needed. Furthermore, online forums and discussion boards foster collaborative learning, connecting students and educators from around the globe to share ideas and insights.

Another key advantage of technology in education is its ability to promote active and personalized learning. With the advent of educational software and applications, students can engage in interactive activities that cater to their individual needs and learning styles. For example, adaptive learning platforms like Duolingo tailor language lessons based on the learner's proficiency level and progress. This personalized approach helps students stay motivated and enhances their comprehension and retention of the material. Additionally, digital simulations and virtual reality tools provide immersive learning experiences, allowing students to explore complex concepts in a hands-on and engaging manner.

Furthermore, technology has revolutionized the way educators deliver instruction and assess students' progress. Online learning management systems, such as Moodle and Canvas, enable teachers to create and share course materials, assign tasks, and provide timely feedback. These platforms streamline administrative tasks, giving educators more time to focus on designing innovative lessons and individualized support for students. Moreover, digital assessment tools offer immediate feedback, enabling students to track their progress and identify areas for improvement. Platforms like Kahoot! and Quizlet make learning enjoyable by incorporating gamification elements, making the assessment process interactive and engaging.

In conclusion, technology has had a profound impact on education, transforming the way we learn and teach. The accessibility to vast amounts of information, the promotion of active and personalized learning, and the innovative methods of instruction and assessment are just a few examples of the positive effects of technology in education. However, it is important to ensure that technology is used as a tool to enhance learning rather than replace traditional teaching methods. As we continue to embrace technological advancements, it is crucial to strike a balance between leveraging its benefits and maintaining the human element in education. By doing so, we can harness the full potential of technology to create a future where education is accessible, engaging, and empowering for all learners."

Final Thoughts on the 5 Paragraph Essay

Once you’ve mastered the format of the 5 paragraph essay, you can write a paper at any length imaginable. Remember that it’s helpful to create an outline or graphic organizer to organize your ideas before you start writing , especially for a longer essay. If you have a rubric ahead of time, you’ll know exactly what you need to watch out for as you edit and polish your paper.

With the above information at your disposal and a rubric in-hand, you should have no excuses for a poor grade. Just be mindful of how much time you have to work, and break the writing into small chunks if you need to. Always start early to get the best grade possible.

Still not sure how to write a good 5 paragraph essay? You can order a high-quality custom essay from us or just take advantage of our top-notch paper editing and rewriting services. So in other words, we’ll write your essay from scratch, write a new draft, or just clean up the draft you’ve already written. Whatever you need to finish your writing and get an excellent grade, you can buy it right here. Check out our reviews if you want to see what some happy customers have said.

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Long Composition Worksheet Templates

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If you're assigning this to your students, copy the worksheet to your account and save. When creating an assignment, just select it as a template!

What is a 5 Paragraph Essay Outline Template or Long Composition Worksheet?

A 5-paragraph essay or long composition worksheet is a tool that helps students write a long expository composition in a structured and organized manner. It is a formulaic strategy that consists of an introductory paragraph with a thesis statement, three body paragraphs, and a concluding paragraph. This type of worksheet helps kids to plan and organize their ideas, and it is commonly used in classrooms and for standardized tests. By using a planning worksheet, students can identify the main idea, supporting details, and important points that they want to include.

Teaching Essay Writing: Understanding the Different Types of Essays

When it comes to teaching essay writing to budding writers, it's important for teachers to understand the different types and their purposes. Here is a brief overview of some of the most common types of essays:

Argumentative Essay

An argumentative essay is a type of essay that is designed to persuade the reader to agree with the writer's point of view. To achieve this, the essay typically presents a main argument supported by evidence and examples. An outline is an ideal template for this type of writing, as it helps to organize your thoughts and evidence to support your main argument effectively. To further assist your class in crafting effective argumentative essays, thesis statement worksheet templates can be used.

Compare and Contrast Essay

In contrast, a compare and contrast essay requires the writer to analyze and compare two or more subjects, highlighting their similarities and differences. A contrast essay outline is perfect for this, as it helps to organize your ideas and ensures that you address all the relevant points.

Expository Essay

An expository essay is intended to explain or inform the reader about a particular topic or idea. It typically includes a clear introduction, body paragraphs with supporting evidence, and a conclusion. Using a general outline template for essays is ideal, as it provides a clear structure.

Persuasive Essay

Persuasive essays are similar to argumentative essays in that they aim to persuade the reader. However, they may use emotional appeals in addition to logical arguments. Templates that include both logical and emotional appeals can be used as a basis for composing a persuasive essay.

Personal Statements

Lastly, personal statements are often required for college or job applications, allowing the writer to express their personal experiences, values, and goals. Picture composition worksheets and written composition worksheets are ideal templates for this type of essay, especially for visual learners who find it easier to organize their ideas using diagrams or pictures.

Each type of essay requires a different approach and it's important for teachers to provide their class with essay planning templates, essay structure worksheets, and other resources to guide them. Using the appropriate composition templates is crucial for writing an effective piece. Whether you're working on an argumentative essay, compare and contrast essay, expository essay, persuasive essay, or personal statement, there is an outline for 5 paragraph essay or outline templates for essays that can help organize ideas and produce a well-structured final copy. With this teacher's guide, you can better understand the different types of essays and tailor your classroom activities accordingly.

Benefits of Using Essay Planning Template for Effective Essay Writing for Students

As a teacher, you may be wondering how to help your class improve their essay writing skills. One effective way is to encourage them to use a planning template. Here are some benefits of using a template to create an effective essay plan:

• Provides Structure: A 5-paragraph essay outline or an essay planner template helps structure ideas and thoughts in a clear and concise manner. It helps them stay on track and ensures that they include all necessary components of an essay, such as an introduction, body paragraphs, and a conclusion.
• Helps to Identify Main Points: A composition template can help identify the main points they want to make in their essay. It helps them focus on the topic and ensure that their writing is relevant to the assignment.
• Encourages Topic Sentences: Essay outline worksheets can help create topic sentences for every paragraph, ensuring that each relates to the main topic and supports the thesis statement.
• Customizable: Essay planner templates can be customized to suit each student's writing style and needs. Some templates are more visual, while others are more text-focused. Students can choose a template that suits their preferences and style, making the process more comfortable and enjoyable.
• Saves Time: Using template for essay outline can save time in the long run. By planning their essay ahead of time, they can avoid writer's block and ensure that they stay focused on the topic.
• Improves Writing Skills: Another benefit of using these templates is students can develop their own writing skills. It helps them to organize their thoughts and ideas, improve their structure, and enhance their critical thinking skills.

By providing learners with the tools and resources they need to succeed, you can help them become confident writers who are capable of expressing their ideas and thoughts effectively.

How to Choose the Right 5 paragraph Essay Template for Your Students' Writing Needs

To write an essay can be a daunting task. One of the most effective tools to help them organize their thoughts and ideas is an essay outline or an essay planning sheet. With different types of templates available, it can be overwhelming to choose the right one for their writing needs. Here are some tips on how to choose the right essay outline for your students.

• Identify Essay Type: Start by identifying the type of essay they need to write, whether it's a narrative, descriptive, persuasive, or expository essay. Different types of essays require different structures and formats. Once they have identified the type of essay, they can then consider the purpose of their writing. Are they trying to inform, persuade, or entertain their readers?
• Evaluate Skills: Next, have them evaluate their own skills. Are they beginners or experienced writers? If they're beginners, it's best to choose a starting point that provides more guidance and structure. On the other hand, if they're experienced writers, they may prefer a template that allows for more flexibility and creativity.
• Think About Style Preference: When choosing an essay outline or template, it's important to look for one that matches their style and preferences. Some templates may have more visual elements, while others may focus on text. Some may have a formal tone, while others may be more casual. Encourage them to choose something that aligns with their style and preferences. Another popular essay template that teachers may consider is the hamburger template. This template breaks down each paragraph of the essay into three parts: the introduction or "top bun," the body or "meat," and the conclusion or "bottom bun." It is a helpful tool for writers to visualize the structure of their essay and ensure that each section has a clear topic sentence, supporting details, and a concluding sentence.
• Experiment: Finally, encourage them to experiment with different essay templates until they find the one that works best for them. They can try using a variety of essay templates, such as essay planning sheets or composition worksheets, until they find the one that suits their needs.

Using an essay outline is an excellent way to start planning and organizing their writing. By choosing the right essay outline or template that matches their writing needs, style, and preferences, students can feel more confident and motivated to write an essay that informs, persuades, or entertains their readers.

Understanding the Basics of Effective Essay Writing with a 5 Paragraph Essay Example

A 5 paragraph essay is one of the most common writing assignments that students encounter throughout their academic journey. It's a straightforward essay format that consists of an introduction, three body paragraphs, and a conclusion. This essay structure is an excellent way to develop writing skills and learn how to organize their thoughts and ideas effectively.

Here's a 5 paragraph essay example that can serve as a guide:

• Introduction: The introduction is the first paragraph of the essay, and it should grab the reader's attention by providing some background information about the topic. In this example, we will be talking about the importance of exercise.
• Body Paragraph 1: The first body paragraph should introduce the main point or argument of the essay. In this example, the main point is that exercise has numerous physical health benefits, such as reducing the risk of heart disease, diabetes, and obesity. It's essential to support this point with specific examples and evidence to make the essay more convincing.
• Body Paragraph 2: The second body paragraph should expand on the main idea, and provide more evidence and examples to support it. In this example, the main idea is that exercise also has mental health benefits, such as reducing stress and anxiety levels. Again, it's crucial to provide specific examples and evidence to support this argument.
• Body Paragraph 3: The third body paragraph should address any opposing viewpoints or arguments related to the main statement. In this example, some people may argue that exercise is time-consuming or expensive. However, it's important to rebut these arguments by providing counter-evidence or explaining how they are not valid.
• Conclusion: The conclusion should summarize the main points of the essay and provide a final thought or call to action. In this example, we could conclude by reiterating the importance of exercise for both physical and mental health and encouraging readers to incorporate exercise into their daily routine.

Ideas on How to Use Composition Worksheets in Classroom Activities

Composition worksheets are a valuable tool for developing their writing skills. They provide a structured approach to the writing process. But how can teachers effectively incorporate composition worksheets into their classroom activities? Here are some ideas to consider:

• Essay Writing Practice: Provide students with templates, such as outline worksheet templates or a multi-paragraph essay template , to practice writing essays. These templates and worksheets will help writers learn how to structure their essays and develop their ideas in a clear and organized way.
• Peer Review: Have kids review each other's essays using composition worksheets. These worksheets can help students provide constructive feedback to their peers, and allow them to identify areas that need improvement.
• Group Work: Assign groups to work on different parts of an essay using composition worksheets. For example, one group could work on the introduction, while another group works on other sections. This will help students develop their collaboration skills, while also learning how to structure an essay.
• Analyzing Literature: Analyzing literature is a common task in language arts classes, and composition worksheets can be a valuable tool to analyze literary works. By using these worksheets, students can identify the main points of a story and develop their own ideas and arguments about the text. In addition, critical analysis worksheet templates can help students structure their analysis and focus on key elements such as plot, character development, and theme.
• Exam Preparation: Provide the class with 5 paragraph essay outlines as a tool for exam preparation. These outlines can help students develop their writing skills and prepare for writing assignments.

By incorporating composition worksheets into classroom activities, teachers can provide students with the tools they need to develop their writing skills and become more confident writers.

How to Make a 5 Paragraph Essay

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Frequently Asked Questions about Long Composition Worksheets

What is a long composition worksheet.

A long composition worksheet is a tool that helps students organize their ideas and structure their writing. It provides a framework for developing a cohesive and well-structured essay.

What are the benefits of using an essay structure worksheet?

An essay structure worksheet helps students to plan and organize their writing, making the writing process more efficient and effective. It also helps students to develop their critical thinking skills by encouraging them to analyze and evaluate their ideas and arguments.

How do I write a 5 paragraph essay?

To write a 5 paragraph essay, start with an introduction that introduces your topic and presents your thesis statement. Then, write three body paragraphs, each focusing on a separate point or argument. Finally, conclude your essay by summarizing your main points and restating your thesis statement.

What is an argumentative essay outline?

An argumentative essay outline is a template that helps students to structure their argumentative essays. It typically includes sections for an introduction, background information, main argument and evidence, counterarguments and rebuttals, and a conclusion.

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How to Write an Academic Paragraph (Step-by-Step Guide)

Unlike creative writing or day-to-day writing, academic writing is highly focused on critical analysis, is typically based on research, and adheres to strict academic conventions. In academic writing, every paragraph seeks to serve the purpose of discussing and sharing information on scientific or scholarly topics with a focused academic community. That is why it is important that each sentence within a paragraph should be relevant and flow in a logically correct and engaging narrative.    

There are different elements that constitute an academic paragraph. Each of these elements works together to present concepts, ideas, and innovative new developments in a coherent manner. Let’s take a look at how to craft an impactful academic paragraph.   

How to write an academic paragraph?  

Any academic writing is centered on a well-formulated main idea or argument. This main idea needs to be developed further, or a research question needs to be answered in a systematic and logical manner. Such a process entails identifying and building points along with relevant supporting evidence to support the main idea.   

In academic writing, the discussion of each of these points is done in separate paragraphs. To aid this process, an outline of your academic assignment can be prepared that helps organize your thoughts and ideas and list the various points or topic sentences to build your argument. A well-articulated and strong paragraph can be developed by ensuring that it contains certain key elements, as discussed below.   

Topic sentence

Each paragraph can have a topic sentence at or near its start. The topic sentence is basically the main point that you will be focusing on in the paragraph. The scope of the topic sentence should be such that it can be discussed and developed in a single paragraph. In reading the topic sentence, the reader should get an idea of the focus of the paragraph.    

Significance

The significance of the point that is being discussed in the paragraph should come out clearly in the ensuing body sentences. This allows readers to understand how it relates to the overall article, thesis, or dissertation.   

What you state in the topic sentence should be backed by evidence. This will depend on your topic, discipline, and nature of the assignment. Evidence can include information drawn from primary sources, such as surveys or interviews that were conducted as part of the study, while secondary sources typically include personal experience based on practice, such as education. You must assess how much evidence needs to be provided to substantiate and prove your point.   

In the rest of the body sentences, the focus should be on your interpretation and analysis of the data and evidence, how these support your argument and the main thesis, and how it is building up to your conclusion. The paragraph can be wrapped up in a concluding sentence that underlines the implications of the evidence.   

4 strategies to enhance academic paragraphs     

In order to achieve clarity and coherence, every paragraph must advance the reader’s understanding of the topic, provide evidence or support for the main argument, and establish connections between ideas. Without this deliberate organization and structure, academic writing can become disjointed, confusing, and less persuasive.   

Using the right transition words

The main purpose of paragraphs is to provide logical sequencing to your ideas and main points. Hence, in moving from one point to another through paragraphs, the use of transition sentences helps in linking ideas presented in one paragraph to the next and previous ones. Transition sentences are usually used either at the beginning or the end of a paragraph.    

Adding citations and references

Where supporting evidence is provided from secondary sources, it is crucial to provide citations and references to acknowledge original sources and avoid the risk of plagiarism.    

Ensuring cohesion and flow

Each sentence in the paragraph should be relevant to the point you are conveying. Hence, while writing a paragraph, make sure that you have a topic sentence, body sentences which develop the ideas and provide evidence and interpretation, a linking sentence that links the point to the overall thesis of the assignment, and appropriate transitions. Then, evaluate whether these provide a cohesive whole and logical flow.   

Ideal length

The ideal length of a paragraph varies between 200 and 300 words, but it can be more. Ensure that a paragraph is neither too long nor too short and that there are sufficient explanations and analysis. Overly lengthy paragraphs with huge volumes of information tend to distract and confuse readers from the main argument.   

Once the paragraph has been written, a close reading is needed to assess whether the core idea is being communicated logically and if there is sufficient evidence and analysis. Each paragraph must link seamlessly with the previous ones using transitions. See that each sentence is conveyed coherently and relevant and that the thread of the argument is flowing clearly. By following the basic structure and key elements of academic paragraphs and implementing strategies to enhance clarity, cohesion, and flow, writers can effectively communicate their ideas and engage with scholarly discourse.  

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write a paragraph about “why i am special?”

That is simply easy!

Explanation:

1. get a sheet of notebook paper and list at least 10 things you find interesting about yourself

2. But you got to ask yourself why are these things interesting

3. Make a rough draft

4. once you are finish correct any spelling, grammar, or any punctuation.

5. then make your final draft.

Related Questions

Is this creative writing? I know this is long but I wrote 2 versions of the story each a little different which one suits best as the word limit is 300? 1. I glanced at my watch to become so fixated on the time, it read 4:43pm August 23rd 2025. Being an ex military officer you see a part of the world not many get to see, the violent cold nature of battle. No one on the battlefield are really enemies, we are just pitted against each other, in the end we are just doing our job so that no one else carries that burden. We pity our enemies as they cry for help, the screams drive most insane but the ones that aren't shaken take it the worst. I hate war. In this world dictated by a paper note, you can get anything if you have enough money. Money creates greed and greed breeds hate therefore relationships shatter and nations fall into chaos. Well that's what got us into this mess 3 years ago when WW3 started with Ukraine and Russia, 3 years ago that was, and they managed to drag every nation into it. Little did anyone know a progessive bomb was created, which couldnt be disarmed and only grows in power, doubling every year. A weapon which gives full control over the world to one nation, to the individual who controls it. A threat which endangered every living being on the pale blue dot called Earth. The world bomb it was called, currently able to incinerate half the planet in an instant, soon to be capable of wiping 8 billion people off the planet. One would now say there's nothing we can do, yet as I stand before the fuse only one answer seemed to cross my mind. How could anything be more important than keeping humanity from being totally wiped out? You either die a hero or live long enough to become the villain they said. As I pulled the fuse to be engulfed by the white light the words leave my mouth, “So, was I a hero or a villain” I'm the same as you i didn't have a choice (not sure if i should add this last line) 2. I squinted at my watch in the frigid dim lit bunker, it read 4:43pm August 23rd 2025. I hate war. In this world dictated by paper notes, you can get anything if you have enough money. Money creates greed and greed breeds hate therefore relationships shatter and nations fall into chaos. Well that's what got us into this mess 3 years ago when WW3 started with Ukraine and Russia, 3 years ago that was, and they managed to drag every nation into it. Little did anyone know a progessive bomb was created, which unable to be disarmed and only grows in power, doubling every year. A top secret nuclear weapon developed by Russia which gives control over the world to one nation, to the individual who controls it. Only a select few know of it, hidden from the rest of the world, it would look like a repercussion of war as everyone tries to hide the truth. A threat which endangered every living being on the pale blue dot called Earth. The world bomb it was called, currently able to incinerate a third of the planet in an instant, soon to be capable of wiping out 8 billion people off the planet. One would now say there's nothing we can do, yet as I stand before the fuse only one answer seemed to cross my mind. How could anything be more important than keeping humanity from being wiped out? You either die a hero or live long enough to become the villain they said. As I pulled the fuse to be engulfed by the white light the words left my mouth, “So, was I a hero or a villain” I'm the same as you i didn't have a choice (not sure if i should add this last line)

I'd say 1 is better.

- - - - - - - - - - - - - - - - - - - - - -

I find the "...in the end we are just doing our job so that no one else carries that burden." more intriguing, I don't know why necessarily, it makes the draft all the more put-together.

If I were you, I wouldn't include the last line you aren't sure about- I like the cliffhanger of “So, was I a hero or a villain...”

(Of course, if it doesn't fit 300 words without the last bit, keep it!)

Good luck with the assignment! :)

.."you have native hands, speaking native voices, using native materials on the site, and native techniques, and so this is, I believe, unique in the Americas in terms of cultural continuity." How does the repetition of native affect the meaning of the text? by emphasizing the exceptionality of a practice that has remained unchanged over time by emphasizing the ingenuity of a practice that is very technologically complex by emphasizing the collaborative aspects of a practice that requires working together by emphasizing the personal satisfaction of a practice that requires great effort to complete

The repetition of native affects the meaning of the text by emphasizing the collaborative aspects of a practice that requires working together.

The repetition of the word ''native'' affects an excerpt by establishing the main idea of the excerpt.

The excerpt given shows how humanities are endowed with different skills, and that if we come together and work as one, we can use those skills to make anything we dream become possible and come into reality .

Therefore, we can conclude that the repetition of native affects the meaning of the text by emphasizing the collaborative aspects of a practice that requires working together.

Learn more about the repetition of words here:

https://brainly.com/question/400513

which of the following sentences uses an idiom to show that logan has taken on a task that is too big for him? A. Logan thought that he could finish the report in a weekend, but he could no finish the project in time. B. Logan thought he could finish the report in a weekend, but he had bitten off more than he could chew C. Logan thought he could finish the report in a weekend, but it turned out to be a chip on his shoulder D. Logan thought that he could finish the report in a weekend, but he was stuck between a rock and a hard place

B.) Logan thought he could finish the report in a weekend, but he had bitten off more than he could chew

A great day with friends. (Write about 40 words.)​

I had wonderful day with my dear friend. The day was just so beautiful the Fall weather is here with plenty of sunshine, blue skies and cool breezes. We decided to take a drive along the coast of the Jersey Shore to the Asbury Park Boardwalk home to the big guy himself Bruce Springsteen and the Stone Pony.

The homes along the coast are just magnificent they look like palaces overlooking the ocean, so it was a day of sightseeing too. We strolled up and down the boardwalk together. Had lunch at an outside café. First time in a long time she ate in front of me and at a restaurant because her partner has to feed her now, and she feels uncomfortable and embarrassed over it. I’ve told her million times I don’t care about any of her physical challenges makes no difference to me.

Speech is unrecognizable and her hands have noticeably weaken more. We played the spelling game using letters and then putting them in the sentence. It worked great ! as long as I was able to guess the correct letter, must say we were able to laugh thru it all.

Out of the blue she told me she said she needed my passport. When I thought I guessed wrong on the word passport when her partner informed me my best friend in the world is taking me to Aruba all expenses paid on her, and we are leaving in December just the three of us!!  OMG I’m bursting with Joy!!

Of course I am overwhelmed with emotion at her generous gift because I completely understand why she wants to do this. Will say this, I plan to make every moment of it count, and everyday there with her special as we ride out this journey together.

Read the excerpt from Shirley Chisholm’s presidential announcement speech. I have faith in the American people. I believe that we are smart enough to correct our mistakes. I believe we are intelligent enough to recognize the talent, energy, and dedication which all Americans, including women and minorities, have to offer. Which idea does Chisholm illustrate by her use of parallelism? her trust in people and her dedication to be a champion of all people her connection to women and minorities as a symbol of her campaign her ability to lead the nation in fixing the problems created by previous leaders her commitment to promoting and supporting women and minorities

The use of parallelism illustrates her trust in people and her dedication to be a champion of all people.

In the text shown above, the author uses parallelism to emphasize the trust she has in the people who are listening to her. This trust places her as a leader and someone capable of understanding the public.

More information about what parallelism is at the link:

https://brainly.com/question/13999767

Both excerpt from double dutch a celebration of jump rope rhythm and sisterhood and excerpt from it’s our world too how are all the ways they solve their problems similar and different

because of the similar problem and different

How can knowledge of painful histories impact future generations?

The next generation will learn from the last generation’s mistakes

Prompt: Write an informative essay that analyzes how words have the power to provoke, calm, and inspire. Use evidence from both selections to support your thesis. Support your ideas with examples, facts and quotations from the texts. Ensure that your ideas are fult supported and that your response is clear and coherent and organized effectively Malala Yousafzai

The question wants to analyze your writing skill . For that reason, I can't write your essay, but I'll show you how to write it.

An informative essay presents information and describes a particular subject . This type of essay is not intended to show opinions and arguments , but only to inform and make a certain topic known.

In this case, before writing your essay, you should seek information on the subject that will be covered. This search should be done in articles that analyze and debate this subject.

After researching the articles and having the necessary information, you can write the essay.

More information on how to write an essay at the link:

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Do you ever have trouble doing your English or Math homework? 10 sentences

Which sentence includes an adjective clause? and why 1) After we remodeled our house, we moved to Hawaii 2) Mary heard a frightening noise that would scare the bravest of people

After we remodeled our house, we moved to Hawaii

what figure of speech is the phrase "And guarded carefully like a raw egg"​

Answer: I think metaphor

Explanation: because it ccompares

Fresh eggs, even those with clean, uncracked shells, may contain bacteria called Salmonella that can cause foodborne illness, often called “food poisoning.” FDA has put regulations in place to help prevent contamination of eggs on the farm and during shipping and storage, but consumers also play a key role in preventing illness linked to eggs. Protect yourself and your family by following these safe handling tips when buying, storing, preparing, and serving eggs—or foods that contain them.

hope it helps

Can someone help me with this adverb question? Select all the adverbs. maddie is anxiously awaiting the result of her interview with the electronics company.

1. Which statement best describes Mary Paul's attitude towards her work at the Lowell mills? A Mary Paul believes that working in the mills will help her grow in religious faith. B Mary Paul believes that working in the mill will allow her to earn money to spend on herself. C Mary Paul believes that working in the mill will provide her with the opportunity for an education. OD Mary Paul believes that working in the mills will allow her to earn money for her brothers' education.

The inference shows that Mary Paul's attitude towards her work at the Lowell mills was C. Mary Paul believes that working in the mill will provide her with the opportunity for an education .

It should be noted that an inference simply means the conclusion that can be deduced based on a story.

In this case, Mary Paul's attitude towards her work at the Lowell mills was that she believes that working in the mill will provide her with the opportunity for an education .

Learn more about inference on:

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Which test identifies mental functioning and must be given by a psychologist or therapist who is certified to administer it? Minnesota Multiphasic Personality Inventory Big 5 16 Personalities Test The Career Questionnaire

Answer:MMPI

Explanation: Minnesota multphasic personality inventory

past participle sentence negative​

I had not eaten at that restaurant before today.

Samantha hadn't had time to explain her side of the story.

My friends hadn't ever gone to France.

My friends had never gone to the USA either.

help me i am in urgent need

there's no be what term can you add to 5/6 * -4 to make it equivalent to 1/2*-4?

what is the diction in the story black cat by leiam oflallerty​

by N MAMBROL — O'Flaherty's depiction of the clash of two cultures, his ear for the local diction, and his intelligence for the local logic and laughter here ...

Why did the Fakir put a spell on the monkey's paw? es A) The Fakir wanted to score people into giving him money. B) The Fakir was a genie and he wanted to grant someone three wishes. C) He wanted to show that fate ruled people's lives and when you play with fate bad things can happen. D) The Fakir wanted to play a trick on people. He thought it would be funny to watch people wish upon a dead monkey paw.

Answer: c he wanted to show that fate ruled peoples lives

how to prevent a manual handling injury

lift with the legs not the back , use mechanical / lifting aids where possible , plan regular break and rotate jobs, no one should lift something that is too heavy for them, and workers must be trained in correct technique for manual handling jobs

she___ (jump) to her feet and____ (leave) the room

She jumped to her feet and left the Room. I think it will help you.

Use your knowledge of The Tragedy of Romeo and Juliet and "Pyramus and Thisbe" to choose and defend a position on the topic of destiny. Based on those two texts, write an argument in the form of literary criticism in response to this question: Which has a greater impact on the characters in these texts

The essay you have been asked to write is an argumentative essay , with an element of criticism. Follow the instruction given below for how to write an effective argumentative essay , with an

To write an essay properly, you must ensure that you first research the topic or ideas you have been given from credible sources. Credible sources include but are not limited to peer - reviewed websites , educational blogs, educational websites with .edu extension.

1. With clarity , introduce the topic in a manner that follows logically from the task and purpose you have been given. It must be clear that you have a good command of the topic which are: "The Tragedy of Romeo and Juliet" and " Pyramus and Thisbe"

2. In the body of your essay (which should follow after your introduction ) you must demonstrate adequate provision of related and relevant evidence to buttress your points. Spend one paragraph on each point and always start with the key point for each paragraph.

Please note that it also helps to ensure that your paragraphs are roughly the same number of words.

3. Show coherence , style, and organization . Ensure that all your points follow one another in a logical sequence . Ensure to make use of credible facts , and evidence in buttressing your claims .

Please note that the purpose of an Argumentative Essay is to consider an idea and present both sides to prove that your point of view or claim is credible . Always recap your key points and summarize your findings in the conclusion .

Learn more about Argumentative Essays at:

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Please helpp. This is honestly so easy but I'm not sure which one to choose and I really need to improve my grades. :( Which use of media in a speech is most appropriate for an audience of high school students?

A. A cartoon showing what happens to the animals of the rain forest when it is destroyed.

I hope this helps you

B is the answer.

Media is a broadcasting, publishing, or the internet. B would be the answer because its an example of the media and its appropriate for an audience of high school students.

I was on ______________ until I found out I'd won. Choose the correct 'Fixed a. Pair' to fill in the blank. B. Pins and needlesc. Odds and endsd. Trial and errore. Skin and bones

"Pins and Needles"

Use the one that makes the most sense or in this case, the one frequently used, I hear 'pins and needles' all the time and use it myself occasionally.

Hope this helped- nwn

Which is the closest synonym for the word substantially, as it is used in the Article? A. scarcely B. completely C. partly D. greatly

Substantially means greatly .

Please mark as brainliest

BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST BRAINLIEST The school has decided to change the school mascot four times. List all three previous mascots that have been used and explain why the school felt that they had to change each one. SPEAK BOOK

Great question, my answer is to get some sleep...

Errrr, what? Can you put a image there next time?

Hang __ the dish towel when you are done with the dishes, please. A) down B) up C) in D) on E) away

this is hard i think i need help i cant answer

A paragragh 1 because it says there on the couch

Explanation:cant comment but your welcome

Answer: Paragraph 3

Explanation: i’m not entirely sure but it talks about going to a museum which relates to the setting.

Which detail from the passage provides the best clue that this passage is historical fiction? A ""Today is one of my favorite days of the year. "" B ""She's been cooking for our town’s barbecue. "" C ""I wake up this morning barely able to contain my excitement. "" D "". It is the 50th anniversary celebration. Slavery has been over for fifty years. ""

D would be the best choice here because it provides the most detailed information. It relates current information (the 50th anniversary celebration) to a notable reference point (slavery has been over for 50 years). The rest of these choices do not relate the current information (today; has been cooking; this morning) to any historical reference point.

Which are features of lyric poetry?.

In explanation

Lyric poetry is a poem that expresses strong thoughts or feelings. This type of poem usually only contains one speaker.

which underlined word is not spelled correctly?​

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Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 1 of 93 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO. 23-80101-CR-CANNON UNITED STATES OF AMERICA, Plaintiff, V. DONALD J. TRUMP, WALTINE NAUTA, and CARLOS DE OLIVEIRA, Defendants. ORDER GRANTING MOTION TO DISMISS SUPERSEDING INDICTMENT BASED ON APPOINTMENTS CLAUSE VIOLATION Former President Trump's Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution. U.S. Const., Art. II, § 2, cl. 2. Special Counsel Smith's use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding. INTRODUCTION The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter, "Special Counsel Smith" or "Special Counsel") in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this 1

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 2 of 93 prosecution proceeds further [ECF No. 326]. The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing "Officers of the United States." Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all “Officers of the United States”—whether “inferior” or “principal”—must be appointed by the President and confirmed by the Senate. Id. It then goes on to direct that "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 Heads of Departments." Id. For purposes of this Order, the Court accepts the Special Counsel's contested view that he qualifies as an “inferior Officer,” not a “principal” one, although the Court expresses reservations about that proposition and addresses those arguments below. The Motion's second challenge is rooted in the Appropriations Clause, which prohibits any money from being "drawn from the Treasury” unless such funding has been appropriated by an act of Congress. Art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . ."). Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment- 28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel's strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. 2

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 3 of 93 The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel's position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause. This Order proceeds as follows. After laying forth pertinent factual and procedural background leading to the present Motion, the Court summarizes the legal principles underlying the Appointments Clause and the separation-of-powers doctrine on which it rests. The Court then surveys the statutory structure of the Department of Justice, focusing on the provisions which grant the Attorney General appointment authority. Following that contextual summary, the Court engages with the text, context, and structure of each of the statutes cited in the Appointment Order. Finding no officer-appointing authority in the cited statutes—and seeing no reason in the mixed historical record to deviate from the absence of such authority-the Court addresses the Supreme Court's dictum with respect to those statutes in United States v. Nixon, 418 U.S. 683, 694 (1974). As the Nixon decision and record bear out, the Attorney General's statutory appointment authority, or the matter of the Appointments Clause more generally, was not raised, argued, disputed, or analyzed; at most, the Supreme Court assumed without deciding that the Attorney General 3

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 4 of 93 possessed statutory appointment authority over the special prosecutor involved in that action. Following the discussion of Nixon and related out-of-circuit precedent, the Court turns to the question whether Special Counsel Smith is a principal officer requiring Presidential nomination and Senatorial consent. On that issue, although there are compelling arguments in favor of a principal-officer designation given the regulatory framework under which he operates, the Court rejects the position based on the available Supreme Court guidance. The Court then examines the question of remedy, concluding that dismissal of this action is the only appropriate solution for the Appointments Clause violation. Finally, the Court considers the Appropriations Clause challenge to the funding of Special Counsel Smith, concluding for many of the same reasons that Congress has not authorized the appropriation of money to be drawn for the expenses of his office. The Order concludes there, finding it unnecessary under the current posture to reach the remedy question for the Appropriations Clause violation. PROCEDURAL HISTORY AND OVERVIEW OF MOTION On June 8, 2023, a grand jury in the Southern District of Florida returned an indictment, signed by the Special Counsel, charging former President Trump with thirty-one counts of willful retention of national defense information in his Mar-a-Lago residence, in violation of 18 U.S.C. § 793(e) [ECF No. 3]. The indictment also brought seven conspiracy and concealment charges against Trump and Waltine Nauta, collectively and/or individually [ECF No. 3 (charging 18 U.S.C. §§ 1512(k), 1512(b)(2)(A), 1512(c)(2), 1519, 1001(a)(2), 2)]. On July 27, 2023, the grand jury returned a Superseding Indictment, also signed by the Special Counsel, increasing the number of total charges to forty-two, and adding a third defendant, Carlos De Oliveira [ECF No. 85]. 4

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 5 of 93 On February 22, 2024, Trump filed the instant Motion [ECF No. 326].¹ The Special Counsel filed an Opposition on March 7, 2024 [ECF No. 374], and Trump filed a Reply on March 24, 2024 [ECF No. 414].² Three sets of amicus parties filed briefs on the Appointments Clause question [ECF Nos. 364-1, 586-587, 618 ("Meese amici"); ECF No. 410-2 (“Landmark Legal amici"); ECF No. 429 ("Constitutional Lawyers amici")]. And the Court later ordered and received supplemental briefing addressing the need for factual development on the Motion [ECF No. 588; see ECF No. 617, 619–620]. Finally, on June 21 and 24, 2024, the Court heard lengthy oral argument on the Motion from the parties and the authorized amici.³ The Motion seeks dismissal of the Superseding Indictment “based on the unlawful appointment and funding of Special Counsel Jack Smith” [ECF No. 326]. The Motion argues that his appointment violates the Appointments Clause for two basic reasons: (1) Special Counsel Smith was not nominated by the President or confirmed by the Senate, as would be required for the appointment of a principal officer or for the appointment of an inferior officer as to which Congress has not authorized such appointment, and (2) even accepting the position that he qualifies as an inferior officer, none of the statutes cited in the Appointment Order, see 28 U.S.C. §§ 509, 510, 515, 533, vests the Attorney General with authority to appoint a special counsel “with the full power and authority to exercise all investigative and prosecutorial functions of any United States Attorney," as is the case with Special Counsel Smith, see 28 C.F.R. § 600.6. The Motion 1 Defendants De Oliveira and Nauta join the Motion [ECF Nos. 331, 611]. 2 Defendant Trump stood trial in New York state criminal court from April 15, 2024, through late May 2024 [ECF No. 421]. 3 The Appointments Clause challenge was argued on June 21, 2024; the Appropriations Clause challenge was argued on June 24, 2024. Transcripts for these hearings can be located at ECF Nos. 647 and 648. 5

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 6 of 93 separately raises an Appropriations Clause challenge because (1) he is drawing on a permanent indefinite appropriation reserved for an “independent counsel" under a statutory appropriation that does not apply to him, see Department of Justice Appropriations Act of 1988, Pub. L. No. 100- 202, 101 Stat. 1329 (Dec. 22, 1987) (hereinafter, “Indefinite Appropriation"); and (2) there is no "other Law" authorizing the appropriation as to him [ECF No. 326]. The Special Counsel opposes both challenges. As to the Appointments Clause issue, he urges that the Attorney General exercised statutory authority in 28 U.S.C. §§ 515 and 533 to appoint him, citing the Supreme Court's decision in United States v. Nixon, 418 U.S. 683 (1974), D.C. Circuit authority, and historical practice [ECF No. 374 pp. 1–16]. As to the Appropriations Clause issue, Special Counsel Smith argues that he lawfully draws from the Indefinite Appropriation for independent counsels, because he retains substantial independence from the Attorney General and was appointed pursuant to "other law" in the form of the same statutes cited above 28 U.S.C. §§ 515 and 533. In any case, Special Counsel Smith continues, any appropriations defect should not result in dismissal of the Superseding Indictment because the Department could lawfully have drawn funds from another source to investigate and prosecute this action [ECF No. 374 p. 25]. FACTUAL BACKGROUND I. Smith Appointment Order On November 18, 2022, by Order Number 5559-2022, Attorney General Garland appointed John L. Smith, an attorney from outside the United States Government, to serve as 6

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 7 of 93 Special Counsel for the United States Department of Justice. 4 Special Counsel Smith was not nominated by the President or confirmed by the Senate. The Appointment Order states that Attorney General Garland is "vested" with appointment authority to issue the Appointment Order pursuant to 28 U.S.C. §§ 509, 510, 515, 533―statutes discussed further below. The Appointment Order then authorizes the Special Counsel to conduct two specified "ongoing investigation[s]" and to "prosecute federal crimes arising from" those investigations. Appointment Order at 1-2. The first investigation relates to "efforts to interfere with the lawful transfer of power following the 2020 presidential election.” Id. at 1. The second investigation is "referenced and described in the United States' Response to Motion for Judicial Oversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC (S.D. Fla. Aug. 30, 2022) (ECF No. 49 at 5–13), as well as any matters that arose or may arise directly from this investigation or that are within the scope of 28 C.F.R. § 600.4(a)." Id. at 2. The instant Superseding Indictment—and the only indictment at issue in this Order—arises from the latter investigation. With respect to funding, all parties agree that Special Counsel Smith's office has been funded since its inception using "a permanent indefinite appropriation . . . established within the Department of Justice 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. [now expired] or other law." 101 Stat. 1329. This is a limitless appropriation. As of September 2023, Special 4 The Appointment Order is made part of the record on this Motion and is referred to herein as the "Appointment Order." See https://www.justice.gov/d9/press- releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf. The Department of Justice's main webpage contains an "Oversight” category with links to webpages for various Special Counsel's Offices, including that of Jack Smith. https://www.justice.gov/agencies/chart/grid; https://www.justice.gov/sco-smith. 7

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 8 of 93 Counsel Smith's Statement of Expenditures reflects $12,807,668 in direct expenses drawn from the Indefinite Appropriation, plus an additional $11,096,601 in “component” expenses “attributable to this investigation,” also drawn from the Indefinite Appropriation.5 II. Special Counsel Regulations At the end of the Appointment Order, there is the following reference to Department of Justice regulations: "Sections 600.4 to 600.10 of title 28 of the Code of Federal Regulations are applicable to the Special Counsel." Appointment Order at 2. Those regulations, hereinafter referred to as the "Special Counsel Regulations” or “Regulations,” are in force today, and they stem from a Final Rule promulgated by the Office of the Attorney General in July 1999 and later codified at 28 C.F.R. §§ 600.1 through 600.10. See Office of Special Counsel, 64 Fed. Reg. 37038 (July 9, 1999). The Notice of Final Rule states that the regulations "replace the procedures for appointment of independent counsel pursuant to the Independent Counsel Reauthorization Act of 1994," and it cites as statutory authority the following seven statutes in Title 28, Chapter 31 of the United States Code: 28 U.S.C. §§ 509, 510, 515–519.7 6 The Special Counsel Regulations consist of ten sections spanning various topics, ranging from jurisdiction, power, staffing, conduct, and accountability, among others. 28 C.F.R. §§ 600.1– 600.10. As most relevant here, and as explored more fully below, the Special Counsel Regulations 5 Special Counsel's Office - Smith Statement of Expenditures, November 18, 2022 through March 31, 2023; Special Counsel's Office – Smith Statement of Expenditures, April 1, 2023 through September 30, 2023. See https://www.justice.gov/sco-smith (last visited July 13, 2024). No additional financial statements have been published yet. 6 This rule was deemed exempted from the notice and comment requirements of the Administrative Procedure Act on the view that it "relate[d] to matters of agency management or personnel." 64 Fed Reg. at 37041. 7 28 U.S.C. § 533, cited in the Appointment Order, is not among the authorizing statutes listed in the Final Rule. 8

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 9 of 93 declare the grounds for appointing a Special Counsel from "outside the United States Government," id. §§ 600.1, 600.3 (referencing “a conflict of interest for the Department or other extraordinary circumstance"); direct the Attorney General to “establish[]" the “jurisdiction of a Special Counsel" through a "specific factual statement of the matter to be investigated," with any expansion of that jurisdiction to be determined by the Attorney General, id. § 600.4(a)- (b); authorize the Special Counsel to wield, "within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney,” id. § 600.6, and without being “subject to the day-to-day supervision of any official of the Department,” id. § 600.7(b); permit the Attorney General to remove the Special Counsel but only "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” id. § 600.7(d); give the Special Counsel discretion to “determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities," id. § 600.6; permit (but do not require) the Attorney General to seek explanations from the Special Counsel about "any investigative or prosecutorial step," id. § 600.7(b); dictate that the Special Counsel "shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice," id. § 600.7(a); and authorize the Attorney General, on a permissive basis, and after “review," to determine that a particular action of the Special Counsel should not be pursued because it is "so inappropriate or unwarranted under established Departmental practices,” id. § 600.7(b) except that if the Attorney General makes that determination, he must notify Congress of his decision to countermand the Special Counsel, id. § 600.9. Distilled down for present purposes, the Special Counsel Regulations mandate that the Special Counsel be selected from outside the Department, and then they empower that outside attorney to exercise "all investigative and prosecutorial functions of any United States Attorney" within his jurisdiction. Id. § 600.6. 9

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 10 of 93 III. Independent Counsel Act, Morrison v. Olson, and Lapse of Independent Counsel Act Prior to promulgation of the Special Counsel Regulations—specifically, from 1978 through 1999 (with a two-year gap between 1992 and 1994)—there was a statute that expressly authorized the appointment of independent counsels. That statute was the now-expired Independent Counsel Act, passed as part of the Ethics in Government Act of 1978. Pub. L. No. 95–521, §§ 601-04, 92 Stat. 1824, 1867–75, as amended by Pub. L. No. 97-409, 96 Stat. 2039 (1983), Pub. L. No. 100–191, 101 Stat. 1293 (1987), Pub. L. No. 103–270, 180 Stat. 732 (1994). Under the now-expired Independent Counsel Act, Congress authorized the Attorney General after finding "reasonable grounds to believe that further investigation [was] warranted" to request that a three-judge panel (termed “division of the court") appoint an “independent counsel" to "fully investigate and prosecute" violations of federal criminal law by certain categories of executive persons, including Presidents and former Presidents for a year after leaving office. 28 U.S.C. § 591(a)–(b); id. § 592(c)(1)(A), (d). Under that framework, the judicial division would "appoint an appropriate independent counsel" from outside the United States government and “define that independent counsel's prosecutorial jurisdiction." Id. § 593(b)(1)— (2); see also id. § 593(c) (authorizing judges to "expand the prosecutorial jurisdiction of an independent counsel"). Once appointed, the independent counsel would have the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." Id. § 594(a). The legality of the Independent Counsel Act took center stage in Morrison v. Olson, 487 U.S. 654 (1988), a suit challenging and upholding the statute under the Appointments Clause and 10

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 11 of 93 other constitutional provisions and principles. In 1994, after Morrison, Congress reauthorized the Independent Counsel Act in accordance with its five-year sunset provision. 28 U.S.C. § 599.9 But then in 1999, when the matter of reauthorization returned to the legislative table—and in the wake of meaningful criticism of the Act 10_Congress let the Act expire and has never reauthorized it since. At that time, then-Attorney General Janet Reno opposed reauthorization in a public statement to Congress. 11 Attorney General Reno expressed various criticisms of the Act¹² and called for a return to what she described as a "non-statutory independent counsel" built on a set of preexisting regulatory procedures that were premised on the Attorney General's “authority to 8 The Supreme Court rejected related challenges to the appointment under Articles II and III of the Constitution. Id. at 684, 678-696. 9 Congress reauthorized the Act in 1983 and 1987 but then let it expire in 1992, ultimately reauthorizing it in 1994. See Ethics in Government Act Amendments of 1982, Pub. L. No. 97- 409, 96 Stat. 2039 (1983); Independent Counsel Reauthorization Act of 1987, P.L. 100-191, 101 Stat. 1293 (1987); Independent Counsel Reauthorization Act of 1994, P.L. 103-270, 108 Stat. 732 (1994). 10 Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2135– 2137 (1998) (recommending that Congress enact an amended statute authorizing the President to appoint a special counsel, with advice and consent of Senate). 11 See Statement of Attorney General Janet Reno Concerning the Independent Counsel Act, Committee on Governmental Affairs, United States Senate (Mar. 17, 1999), available at https://www.justice.gov/archive/ag/testimony/1999/aggovern031799.htm. 12 Attorney General Reno observed that the Act "distort[ed]" the process of prosecutorial discretion by "creat[ing] a new category of prosecutors” with “no practical limits on their time or budgets," thus artificially incentivizing prosecution; vested an independent counsel “with the full gamut of prosecutorial powers, but with little of its accountability"; applied too broadly to various categories of public officials, most of whom could be prosecuted by the Department of Justice without conflicts; contained an unduly broad and malleable “triggering mechanism,” resulting in appointments that ordinarily would not have been sought; created disputes about the independent prosecutor's jurisdiction; made removal of an independent counsel by the Attorney General politically difficult; and contained a final-report requirement that “created a forum for unfairly airing a target's dirty laundry," among other issues. Id. 11

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 12 of 93 appoint a special prosecutor when the situation demands it.” Id. Then, a day after the Independent Counsel Act expired, the same Special Counsel Regulations described above came into being to "replace the procedures for appointment” under the lapsed Act. See 64 Fed. Reg. 37038-01. As noted, the Special Counsel Regulations have remained in place without change since their effective date in July 1999, with at least one unsuccessful legislative effort in 2019 to enact a special counsel statute. 13 No such special counsel statute exists today, and no such statute existed in November 2022 when Attorney General Garland issued the Appointment Order. APPOINTMENTS CLAUSE DISCUSSION I. Background Legal Principles Article II, Section 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the 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. Art. II, § 2, cl. 2. The Appointments Clause “prescribes the exclusive means of appointing ‘Officers of the United States."" Lucia v. Sec. & Exch. Comm'n, 585 U.S. 237, 244 (2018). An "Officer of the United States," as distinct from a non-officer employee, is any appointee who exercises "significant authority pursuant to the laws of the United States," Buckley v. Valeo, 424 U.S. 1, 126 (1976), and who occupies a “continuing' position established by law,” Lucia, 585 U.S. at 245 (quoting United States v. Germaine, 99 U.S. 508, 511–12 (1878)); Edmond v. United States, 520 13 See S. 71, 116th Cong. (2019) (proposed legislation copying Special Counsel Regulations almost verbatim). 12

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 13 of 93 U.S. 651, 662 (1997) (“The exercise of ‘significant authority pursuant to the laws of the United States; marks, not the line between principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley, the line between officer and nonofficer." (quoting Buckley, 424 U.S. at 126)). The Appointments Clause establishes "two classes" of Constitutional officers: “principal” officers and "inferior” officers. Germaine, 99 U.S. at 509-10.14 Principal officers must be appointed by the President, with the advice and consent of the Senate. Art. II, § 2, cl. 2; Edmond, 520 U.S. at 659; United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021). That mechanism- Presidential nomination and Senatorial confirmation—is the "default manner of appointment" for principal and inferior officers. Arthrex, Inc., 594 U.S. at 12. But the Appointments Clause provides another means to facilitate inferior-officer appointments, and it does so through the so- called "Excepting Clause." Edmond, 520 U.S. at 660. That clause permits Congress—"by law," and as it "thinks proper”-to “vest” the appointment of such inferior officers in three places, and only three places: “in the president alone, in the Courts of Law, or in the Heads of Departments." Art. II, § 2, cl. 2. But “any decision to dispense with Presidential appointment and Senate confirmation is Congress's to make, not the President's.” Weiss v. United States, 510 U.S. 163, 187 (1994) (Souter, J., concurring) (emphasis added); United States v. Perkins, 116 U.S. 483, 485 (1886) ("The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of congress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto.”). Importantly, the Framers considered, and initially maintained, a proposal by which the President alone would have had the authority to "appoint officers in all cases not otherwise 14 The principles governing inferior versus principal officer are explored below. Infra pp. 67–80. 13

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 14 of 93 provided for by this Constitution."" Morrison, 487 U.S. at 675 (quoting 1 Records of the Federal Convention of 1787, pp. 183, 185 (M. Farrand ed. 1966)). That proposal, however, was replaced on September 15, 1787, when Gouverneur Morris moved to add the Excepting Clause to Article II, which was adopted shortly thereafter. That left Congress with an important—though circumscribed role in vesting appointment authority for inferior officers. Id. The Framers' rejection of unilateral executive-appointment authority traces its roots to the American colonial experience with the English monarchy and to the Framers' desire to limit executive aggrandizement by requiring shared legislative and executive participation in the area of appointments. See Edmond, 520 U.S. at 559-660; Freytag v. Comm'r, 501 U.S. 868, 884 (1991) (examining historical sources on the subject of executive appointment-power abuses); Weiss, 510 U.S. at 184 (1994) (Souter, J., concurring) (discussing Framers' awareness of the English monarchy's pre-revolutionary "manipulation of official appointments" and corresponding recognition "that lodging the appointment power in the President alone would pose much the same risk as lodging it exclusively in Congress: the risk of an incautious or corrupt nomination." (internal quotation marks and brackets omitted)); Trump v. United States, 144 S. Ct. 2312, 2349 (2024) (Thomas, J., concurring). For these and other reasons, and as the Supreme Court has emphasized, the Appointments Clause is "more than a matter of ‘etiquette or protocol'; it is among the significant structural safeguards of the constitutional scheme." Edmond, 520 U.S. at 659 (quoting Buckley, 424 U.S. at 124 (emphasis added)); see Buckley, 424 U.S. at 132 (referring to the Appointments Clause as setting forth "well-established constitutional restrictions stemming from the separation of powers”). Indeed, it is rooted in the separation of powers fundamental to our system of government and to the limitations built into that structure—all of which aim to prevent one branch from 14

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 15 of 93 aggrandizing itself at the expense of another. Freytag, 501 U.S. at 878 ("The roots of the separation-of-powers concept embedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one branch's aggrandizing its power at the expense of another branch."). The Appointments Clause also preserves "the Constitution's structural integrity by preventing the diffusion of the appointment power" and thus enhancing democratic accountability. Id. at 878; id. at 884-86 (explaining that the Appointments Clause protects democratic accountability by limiting “the distribution of the appointment power” to “ensure that those who wielded it were accountable to political force and the will of the people"); Ryder v. United States, 515 U.S. 177, 182 (1995). Turning to the Excepting Clause more specifically, the Appointments Clause requires that any Congressional decision to vest inferior-officer appointment power must be made by “Law”— meaning statutory law, as all parties rightly agree [ECF Nos. 326 pp. 4–5; ECF No. 374 pp. 3–4]. Art. II, § 2 cl. 2. This “Law,” it bears noting, is a means by which Congress, in the words of the Clause, can express its determination of whether it is “proper” to vest such appointment power in one of the three circumscribed repositories. Id. (providing that "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") (emphasis added). Congress thus retains a critical role in determining which offices to create and whom to vest with inferior-officer appointment power. And that role cannot be usurped or minimized, for doing so would “breach .. . the national fundamental law”” of separation of powers and violate the principle that “[a]ll Legislative power. . . shall be vested in . . . Congress." Buckley, 424 U.S. at 122 (quoting Hampton & Co. v. United States, 276 U.S. 394 (1928)); see Art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of 15

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 16 of 93 Representatives."). 15 Put another way, there can be no expansion of the vesting power beyond what is permitted in the Clause, and there can be no usurpation of the appointment power “by indirection.” Buckley, 424 U.S. at 135–36; Myers v. United States, 272 U.S. 52, 164 (1926) (stating that the Excepting Clause must be “strictly construed” and not “extended by implication"). Pausing for a moment to distill the key principles so far, the following points stand out: The Appointments Clause reflects a carefully crafted system, rooted in the separation of powers, by which the Executive and Legislative branches jointly participate in appointments, exerting limitations upon each other, ensuring “public accountability," and "curb[ing] Executive abuses." Edmond, 520 U.S. at 659. Congress retains a pivotal role in the appointment sphere, a role that cannot be usurped or expanded. Freytag, 501 U.S. at 878. The Appointments Clause imposes a mandatory and exclusive procedure that must be enforced according to its plain meaning, without exception. Buckley, 424 U.S. at 127, 132, 138-39 (rejecting effort to read Appointments Clause “contrary to its plain language" and insisting upon strict compliance with the Clause); Myers, 272 U.S. at 164 (stating that the Appointments Clause must be "strictly construed" and not "extended by implication"). There is an additional background legal topic, and it concerns the degree of clarity with which Congress must speak when expressing its intent to “vest” inferior-officer appointment power. In other words, should courts apply a "clear statement rule" in this context? The Meese amicus brief urges application of such a rule, arguing that requiring Congress to speak clearly before determining that a statute permits deviation from the default appointment method is warranted to preserve the structural separation-of-powers foundation and federalism features upon which the Appointments Clause is built [ECF No. 364-1 pp. 19–20 (advocating for clear-statement 15 See also Lucia, 585 U.S. at 263–64 (Breyer, J., concurring) (“The use of the words 'by Law' to describe the establishment and means of appointment of ‘Officers of the United States,' together with the fact that Article I of the Constitution vests the legislative power in Congress, suggests that (other than the officers the Constitution specifically lists) Congress, not the Judicial Branch alone, must play a major role in determining who is an ‘Office[r] of the United States.' And Congress' intent in this specific respect is often highly relevant."). 16

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 17 of 93 rule but defending position on the basis of ordinary statutory interpretation too)]. See Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment As Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87, 115-16 (2019). Trump appears to agree with these arguments, although not explicitly in "clear statement” terms. And Special Counsel Smith seems to reject imposition of any rule of construction or presumption [ECF No. 374 pp. 11–14; see ECF No. 647 pp. 87-88]. Without purporting to survey the Supreme Court's "clear statement” jurisprudence, it is enough to say that clear statement rules have been applied as substantive canons of construction in various contexts to protect foundational constitutional guarantees, and usually to solve questions of ambiguity in statutory interpretation. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 168 (2010); W. Virginia v. Env't Prot. Agency, 597 U.S. 697, 735– 36 (2022) (Gorsuch, J., concurring). 16 Clear statement rules do not require Congress to "use magic words” or to “state its intent in any particular way,” but they do require Congress to speak clearly― not merely "plausibly"—as discerned through traditional tools of statutory construction. MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 298 (2023)); Spector v. Norwegian 16 These include attempted waivers of federal and state sovereign immunity, Fin. Oversight & Mgmt. Bd. for Puerto Rico v. Centro de Periodismo Investigativo, Inc., 598 U.S. 339, 346 (2023), Dep't of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024), Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 (1996); efforts to impose retroactive liability, Landgraf v. USI Film Products, 511 U.S. 244, 265–66 (1994); attempts to grant agencies powers of "vast economic and political significance," Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 594 U.S. 758, 764 (2021); federal preemption of state law and federal efforts to regulate areas of traditional state responsibility, Bond v. United States, 572 U.S. 844, 859 (2014), Nixon v. Missouri Municipal League, 541 U.S. 125, 128 (2004), BFP v. Resolution Trust Corporation, 511 U.S. 531, 544 (1994); jurisdictional time bars affecting a court's adjudicatory capacity, Wilkins v. United States, 598 U.S. 152, 159 (2023); Boechler, P.C. v. Comm'r of Internal Revenue, 596 U.S. 199, 206 (2022); and in cases that could be described as implicating the balance between the federal branches, Kucana v. Holder, 558 U.S. 233, 237 (2010); I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001); Davis v. Passman, 442 U.S. 228, 246–47. 17

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 18 of 93 Cruise Line Ltd., 545 U.S. 119, 139 (2005) (plurality opinion). When a clear statement rule does apply, it can mean that a court chooses a lesser, though still tenable, interpretation of a statute as a means to protect significant constitutional values. Biden v. Nebraska, 143 S. Ct. 2355, 2378 (2023) (Barrett, J., concurring) (noting that “the hallmark of a true clear-statement rule" is where a court "purports to depart from the best interpretation of the text"). There are reasons to believe that application of a clear statement rule would apply to the interpretation of statutes affecting the separation-of-powers balance animating the Appointments Clause. Clear statement rules, as noted, generally apply "when a statute implicates historically or constitutionally grounded norms that we would not expect Congress to unsettle lightly." Jones v. Hendrix, 599 U.S. 465, 492 (2023). And separation of powers norms ring strong here, where the Special Counsel's proffered statutory interpretations would displace the Senate from its ordinary and longstanding role of confirming United States Attorneys and give to the Executive seemingly unchecked power to create offices for outside prosecutors beyond the scheme designed in Title 28 of the United States Code. Additionally, there are indications in the language of the Appointments Clause itself specifically, its repeated reference to "Law” and to Congress's determination of what it “think[s] proper” for vesting purposes—that support requiring Congress to make its intent known with discernable clarity. Article II, § 2, cl. 2. And then there are cases specifically in the Appointments Clause context-principally Edmond and Weiss, discussed later-where the Supreme Court has insisted upon textual clarity when faced with more ambiguous language.17 17 Edmond, 520 U.S. at 656-58 (recognizing clear statute granting appointment power and declining to find appointment power in a separate statute lacking similarly clear language); Weiss, 510 U.S. at 757 (recognizing that Congress knows how to speak clearly in the appointment context and then, on the basis of that Congressional know-how, declining to find appointment power in statutes that lacked sufficient precision); Germaine, 99 U.S. at 509-10; Lucia, 585 U.S. at 257 (Breyer, J., concurring) (agreeing with majority that Commission did not properly appoint ALJs 18

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 19 of 93 In any case, despite the appeal of applying a clear statement rule in this constitutional setting, the Court finds it unnecessary to do so and would reach the same conclusion in this Order regardless. Neither party presses hard for or against such a rule; the Supreme Court has not expressly addressed whether a clear statement rule applies in the context of the Appointments Clause; and in any case, the Court is satisfied that standard tools of statutory interpretation suffice to discern whether the "Law" at issue, 28 U.S.C. § 515, 533, evinces a Congressional intent to "vest the Appointment” of inferior Officers in the Attorney General as the Special Counsel suggests. Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (finding resort to clear statement rule unnecessary because the text and structure of the statute at issue showed that Congress did not intend a substantial alteration in federal-state relations). II. Statutory Structure of Justice Department and Attorney General's Appointment Authority Before delving into the particular statutes cited in the Appointment Order, the Court surveys the statutory structure of the Department of Justice, focusing on provisions that authorize the Attorney General to appoint officers and/or employees, and also noting Congress's displayed legislative agility in prescribing appointment methods within that structure. Some of this material features later in this Order, but the Court deems it helpful to provide initial structural context for the discussion to follow. Title 28 of the United States Code governs the Department of Justice, an executive department of the United States, 28 U.S.C. § 501, and it contains various structural chapters. For present purposes, the most important are Chapter 31 for the Attorney General, 28 U.S.C. § 501- 530D; Chapter 33 for the Federal Bureau of Investigation, 28 U.S.C. §§ 531–540d; and Chapter and then observing that "no other statutory provision . . . would permit the Commission to delegate the power to appoint its administrate law judges to its staff"). 19

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 20 of 93 35 for United States Attorneys, 28 U.S.C. §§ 541-550. Title 28 also includes chapters for the United States Marshals Service, 28 U.S.C. §§ 561-569; United States Trustees, 28 U.S.C. §§ 581- 589b; the now-expired Independent Counsel, 28 U.S.C. §§ 591–599; and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 28 U.S.C. § 599a-599b. In Chapter 31, Congress requires the President to "appoint, with the advice and consent of the Senate, an Attorney General of the United States" to serve as "head of the Department of Justice." Id. § 503. Congress then provides for the Presidential appointment of various officers within the Department, all expressly "by and with the advice and consent of the Senate." Id. §§ 504, 504a, 505, 506. These include a Deputy Attorney General, id. § 504; an Associate Attorney General, id. § 504a; a Solicitor General, id. § 505; and eleven Assistant Attorneys General, id. § 506; see also § 507. In each of these statutes, Congress employs statutory language fully tracking the default manner of appointing principal officers in the Appointments Clause. By contrast, in a separate section of the same chapter, Congress permits the Attorney General to appoint an Assistant Attorney General for Administration, a non-officer employee whom Congress expressly places in the competitive service. Id. § 507. Chapter 33 governs the Federal Bureau of Investigation (FBI). The FBI is headed by a director appointed by the President, by and with the advice and consent of the Senate, for a term of ten years, who is paid under the Federal Executive Salary Schedule. P. L. 90-351, Title VI, § 1101, 82 Stat. 236 (1968).18 Chapter 33 also authorizes the Attorney General, within his control of the FBI, and as discussed later in connection with 28 U.S.C. § 533, to "appoint officials” to "detect and prosecute crimes against the United States," to "assist in the protection" of the 18 Prior to 1976, Congress authorized the Attorney General to appoint the FBI director, but then it switched course to the default appointment method. 28 U.S.C. § 532; see Oct. 15, 1976, P. L. 94- 503, Title II, § 203, 90 Stat. 2427. 20 20

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 21 of 93 President and the Attorney General, and to conduct investigations "regarding official matters under the control" of the Departments of Justice and State. 28 U.S.C. § 533. Chapter 35 relates to United States Attorneys, and it directs the President, in mandatory terms, to "appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district”—further specifying that such United States attorneys “shall be appointed for a term of four years" and shall be “subject to removal by the President." 28 U.S.C. § 541. It is undisputed, and correct, that all United States Attorneys (93 currently) have been appointed by the President and confirmed by the Senate throughout our Nation's history, except that Congress has permitted the Attorney General to appoint interim United States Attorneys with specific restrictions. 28 U.S.C. § 546 (limiting duration of terms and prohibiting Attorney General from appointing an interim United States Attorney "whose appointment by the President to that office the Senate refused to give advice and consent"). It also bears noting, in the context of the Attorney General's appointment authority, that 28 U.S.C. § 543 (within Chapter 35 for United States Attorneys) allows the Attorney General to "appoint attorneys to assist United States attorneys when the public interest so requires, including the appointment of tribal prosecutors," further indicating that such special attorneys are “subject to removal by the Attorney General.” 28 U.S.C. § 543(a) (b). As discussed further infra, Special Counsel Smith does not rely on 28 U.S.C. § 543 to provide authority for his appointment, and he disavows any notion that he is "assisting" a United States attorney. 19 19 Chapter 37 addresses the United States Marshals Service and provides for a Director of the Service who is "appointed by the President, by and with the advice and consent of the Senate," 28 U.S.C. § 561, along with individual United States marshals in each judicial district, all of whom also are appointed by the President and confirmed by the Senate. Id. Chapter 39 is designated for United States Trustees, who are appointed by the Attorney General for various specified judicial districts, and who are "subject to removal by the Attorney General.” 28 U.S.C. § 581. Chapter 40A establishes “the Bureau of Alcohol, Tobacco, Firearms, and Explosives [ATF],” which is 21

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 22 of 93 There is one last piece in the United States Code in which the Attorney General is given appointment authority, and it is codified at 18 U.S.C. § 4041. That section, located within the Prisons and Prisoner Part of Title 18, and passed in 1948, authorizes the Attorney General to appoint the director of the Bureau of Prisons (BOP) who serves “directly under the Attorney General," and then also permits the Attorney General to “appoint such additional officers and employees as he deems necessary.” 18 U.S.C. § 4041. There are no other provisions in the United States Code of which the Court is aware that permit the Attorney General to appoint “officers" or employees. III. Analysis of Statutes Cited in Appointment Order The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment-28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction. In considering each of these four provisions, the Court “begins where all such inquiries begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). This requires the Court to interpret statutory language according to its ordinary meaning, and to read it within the specific context in which it appears and within the broader context of the statute as a whole. See, e.g., Sw. Airlines Co. v. Saxon, 596 U.S. 450, 455 (2022); King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (noting “the cardinal rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on headed by a Director who “shall be appointed by the President, by and with the advice and consent of the Senate." 28 U.S.C. § 599A(a)(1)–(2). 22 22

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 23 of 93 context" (internal citation omitted)); Regions Bank v. Legal Outsource PA, 936 F.3d 1184, 1192 (11th Cir. 2019) (“The whole-text canon refers to the principle that a judicial interpreter should consider the entire text, in view of its structure and of the physical and logical relation of its many parts, when interpreting any particular part of the text.” (internal quotation marks and brackets omitted)). A. 28 U.S.C. § 509 The first statute cited in the Appointment Order is 28 U.S.C. § 509, a generic provision vesting DOJ's functions in the Attorney General. It is titled "Functions of the Attorney General," and it provides, in full, as follows: All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions- (1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice; (2) of the Federal Prison Industries, Inc.; and (3) of the Board of Directors and officers of the Federal Prison Industries, Inc. 28 U.S.C. § 509. Special Counsel Smith neither argues that Section 509 establishes an office, nor that it grants officer-appointing power to the Attorney General. Indeed, it does neither of these. It is a general statute simply declaring that the Attorney General is imbued with all functions of the Department and its agencies except in the limited instances of administrative law judges and private federal prisons. No more discussion about Section 509 is necessary. 23

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 24 of 93 B. 28 U.S.C. § 510 The second statute cited in the Appointment Order is 28 U.S.C. § 510, a general provision allowing the Attorney General to delegate his functions to officers, employees, and agencies of DOJ. The full text of Section 510, titled “Delegation of authority,” provides as follows: The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. 28 U.S.C. § 510 (emphasis added). Special Counsel Smith does not classify or rely on Section 510 as an officer-appointing or office-creating statute, nor is it. Using similarly general phrasing as Section 509, Section 510 merely gives the Attorney General flexibility to authorize existing DOJ officers, employees, or agencies to perform the functions of the Attorney General, consistent with the nature of those functions. See Calabresi & Lawson, supra at 107 (noting the authority granted in Section 510 to delegate "delegable functions" (emphasis in original)). Special Counsel Smith, as all agree, and as required by the extant Special Counsel Regulations, was “selected from outside the United States Government." 28 C.F.R. § 600.3(a). No more discussion about Section 510 is necessary. C. 28 U.S.C. § 515 The third statute cited in the Appointment Order is 28 U.S.C. § 515, titled "Authority for legal proceedings; commission, oath, and salary for special attorneys." 28 U.S.C. § 515. It contains two subsections, quoted fully below: (a) The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. 24 24

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 25 of 93 (b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney. 28 U.S.C. § 515. Although Special Counsel Smith relies primarily on Section 515(b), the Court analyzes each subsection in turn. i. Section 515(a) Section 515(a) does not authorize the creation of any office and does not authorize the Attorney General to appoint anyone. Nor does the Special Counsel meaningfully argue that it does. As its text indicates, Section 515(a) simply declares that the Attorney General, any "officer of the Department of Justice," or any "attorney specially appointed by the Attorney General under law" referring to previously existing special attorneys appointed under statutory law—are authorized to conduct legal proceedings "which United States attorneys are authorized by law to conduct," regardless of whether the litigating officer or special attorney resides in the district in which the proceeding is brought. 28 U.S.C. § 515(a). 20 This is a provision conferring territorial flexibility to the Attorney General; it permits the Attorney General to use DOJ officers and previously appointed special attorneys to litigate on behalf of the United States, regardless of residency. No more can be inferred from the text of Section 515(a), and again, Special Counsel Smith does not meaningfully rely on it as a source of officer-appointing power. 20 To the extent Special Counsel Smith insinuates that “under law” in Section 515(a) does not require what it plainly says that special attorneys must be appointed by the Attorney General under statutory law [ECF No. 374 p. 12]—no basis is provided for that atextual suggestion. Trump, 2024 WL 3237603, at *27 (Thomas, J., concurring). The phrases “under law" in Section 515(a) and "under authority of the Department of Justice" in Section 515(b) plainly refer to statutory law outside of Section 515. Any other reading would render these phrases surplusage. See Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598, 621 (D.D.C. 2018) (citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)). 25

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 26 of 93 ii. Section 515(b) The Court thus shifts to Section 515(b), where the Special Counsel devotes more attention. According to the Special Counsel, Section 515(b) “gives the Attorney General authority to appoint ‘special attorneys' like the Special Counsel" [ECF No. 374 p. 11]. This is so, he contends, because (1) "[s]pecially retained under authority of the Department of Justice' necessarily means specially retained by the Attorney General, who is head of the Department of Justice and vested with all of its functions and powers" [ECF No. 374 p. 11 (emphasis in original, quoting 28 U.S.C. § 515(b))]; (2) the terms “commissioned” and “specially retained” in the statute effectively mean “appoint” [ECF No. 374 pp. 11–12; see ECF No. 647 pp. 62-63]; and (3) the history of Section 515(b) “confirms that it provides appointment power” [ECF No. 374 p. 14; see, e.g., ECF No. 647 p. 56]. These arguments cannot be squared with the statutory text, context, or history. a. Ordinary Meaning Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-"retained" "special attorneys” or “special assistants" within DOJ. It specifies that those attorneys-again already retained in the past sense-shall be "commissioned," that is, designated, or entrusted/tasked, to assist in litigation (more on "commissioned" below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter. 26

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 27 of 93 This understanding of Section 515(b) as a descriptive statute about already-retained attorneys―rather than as a source of new appointment power—is confirmed by additional textual features within the provision itself. First, as the district court in Concord Mgmt. & Consulting LLC, observed in evaluating a similar challenge, and as alluded to above, the statute uses the past participle tense of the word retain. 317 F. Supp. 3d at 621. Congress's use of a verb tense can be significant in evaluating statutes. See, e.g., Carr v. United States, 560 U.S. 438, 448 (2010) (describing that "varied” verb tenses communicate different meanings). And that is so here, where the text of Section 515(b) plainly does not announce or give anyone the active power to "retain" anyone afresh but simply notes specific requirements or features about attorneys already "specially retained" in the past "under the authority of the Department of Justice.” Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 621 (observing that regardless of whether Section 515(b) refers to past or present conditions, it "does not appear to convey the power to bring those conditions about”). Second, absent from Section 515(b) is any reference to the verb “appoint," an active verb used in the Appointments Clause itself. Art. II, § 2, cl. 2. To justify that void, the Special Counsel says the Court should read the terms “specially retained” and “commissioned" in Section 515(b) as the functional equivalent of “appoint.” The Court declines to engage in such linguistic distortion, nor is it aware of any vesting statute that uses those verbs as replacements for the verb "appoint." For starters, the term “appoint," on the one hand, and the terms “retain” or “commission,” on the other, are not invariably interchangeable. See In re Walter Energy, Inc., 911 F.3d 1211, 1143 (11th Cir. 2018) ("When a statute does not define a term, we often look to dictionary definitions for guidance."). Definitions of the verb "appoint" describe the filling of a more enduring and often formal or official role or office. Black's Law Dictionary (4th ed. 1951) 27

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 28 of 93 (defining "appoint" as "[t]o designate, ordain, prescribe, nominate,” and explaining that "appoint' is used where exclusive power and authority is given to one person, officer, or body to name person to hold certain offices"); see Merriam-Webster's Collegiate Dictionary (11th ed. 2003) (“to name officially"); Oxford American Dictionary (3d ed. 2010) ("assign a job or role (to someone)"). This differs from definitions of “retain” and “commission," which often connote a narrower, mission- or task-specific hiring or charge. Retain, Webster's Third New International Dictionary (1961) ("to keep in pay or in one's services" or "to employ (a lawyer) by paying a preliminary fee that secures a prior claim upon services in case of need"); commission, id. ("to endow with effective right or power" or "to appoint to a certain task, mission, function, or duty”); retain, Black's Law Dictionary (4th ed. 1951) (“[t]o continue to hold, have, use, recognize, etc., and to keep," and "[t]o engage the services of an attorney or counsellor to manage a cause”). 21 In any case, even accepting some degree of overlap among some of these definitions, it remains the case that the Supreme Court has been apprehensive to accept other statutory terms as stand-ins for the word "appoint” in the Appointments Clause context, recognizing that Congress consistently uses the word "appoint" rather than “terms not found within the Appointments Clause." See Edmond, 520 U.S. at 657-58 (holding that statute's use of "assign" did not vest 21 Many definitions of the transitive verb “commission” merely invoke the noun form of the word, "commission." E.g., Webster's Seventh New Collegiate Dictionary (1969) (defining the verb "commission" as “to furnish with a commission"); Webster's Third New International Dictionary (1961) (similar). Notably, though, definitions of the noun “commission" convey the same task- specific as opposed to role-oriented-meaning as the verb. See Webster's Seventh New Collegiate Dictionary (1969) (defining noun “commission” as “a formal written warrant granting the power to perform various acts or duties” or “an authorization or command to act in a prescribed manner or to perform prescribed acts"); Webster's Third New International Dictionary (1961) (defining noun "commission” as “a formal written warrant or authority granting certain powers or privileges and authorizing or commanding the performance of certain acts or duties,” referencing "an order to perform a particular task or carry out a work"). 28

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 29 of 93 officer-appointing authority); Weiss, 510 U.S. at 171–72.22 Moreover-for the same verb-tense reasons as stated above-whatever possible linguistic overlap might exist between the present- tense formulations of the verbs "appoint," "retain,” or “commission," Section 515(b) does not use them in that format, using instead the past participle adjective application. All of this yields the following in terms of ordinary meaning for the terms “specially retained" and "commissioned as ... special attorney” in Section 515(b): (1) “retained” essentially means employed or hired; (2) "commissioned” means designated, classified, or tasked in a role; and (3) together those phrases transmit the fairly mundane, descriptive point that already-hired attorneys within the Department shall be classified as special assistants or special attorneys and shall take an oath and have a fixed salary. That is all that fairly can be extracted from Section 515(b). There is no granting of appointment power in this language. Nor, as the Special Counsel suggests, does the historical pedigree of Presidential "commissions" dating back to Marbury v. Madison, 5 U.S. 137 (1803), transform the adjective phrase "shall be commissioned... as special attorney" into an implicit grant of officer- appointment power for the Attorney General [ECF No. 374 p. 11]. True, as Marbury informs, the "last act to be done by the President" in making an appointment for a constitutional officer is "the signature of the commission," thus demonstrating his action “on the advice and consent of the senate to his own nomination.” Id. at 157 (emphasis added); see Art II, § 2, cl. 3 (Recess Appointment Clause). But nothing in the language of Section 515(b) speaks in terms of a traditional Presidential appointment with Senate confirmation followed by the signing of an 22 This is not to suggest, of course, that an appointment statute has to use "magic words" lest it fail the "appointment test." See Lucia, 585 U.S. at 264 (Breyer, J., concurring). But, as noted, the Supreme Court has demonstrated a preference for language that tracks the constitutional text, see Edmond, 520 U.S. at 657-58; Weiss, 510 U.S. at 171–72; Germaine, 99 U.S. at 510, and so has Congress, see supra pp. 47-50. 29 29

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 30 of 93 officer-level commission, as was the case in Marbury. Far from it, for all of the reasons already stated. Simply put, whatever historical relevance there is to take from the fact that Presidents— not Attorneys General—sign commissions for constitutional officers, it does nothing to alter the ordinary meaning of Section 515(b). b. Statutory Context The broader statutory context of Title 28—and the use of the term "special attorney" within that context, in particular, in Section 543—also refutes the Special Counsel's untenable reading of Section 515(b). It is an axiom of statutory interpretation that “identical words used in different parts of the same act are intended to have the same meaning."" See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (citing Dep't of Revenue of Oregon v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 231 (2020) (consistent usage canon); Deal v. United States, 508 U.S. 129, 132 (1993) (noting that it is a “fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used."). It is also well settled that statutory provisions should be interpreted harmoniously, not in contradictory fashion, after considering the whole statutory scheme and context holistically. United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); Panama Ref. Co. v. Ryan, 293 U.S. 388, 439 (1935) (Cardozo, J., dissenting). These guideposts matter much here. Section 515 was enacted in 1966 as part of a wide-scale government reorganization act across the Executive branch. Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378. See infra pp. 34–36 (discussing predecessor statutory history of Section 515). As relevant to Title 28, that legislation contained two other explicit references to "special attorneys" in the Department, both of which remain in force today: Section 543 and 519. Id. §§ 515, 519, 543, 80 Stat. 378, 611–618. 30 30

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 31 of 93 Section 543-titled "Special attorneys”—gives the Attorney General authority to "appoint attorneys to assist United States attorneys when the public interest so requires." 28 U.S.C. § 543. And then Section 519 directs the Attorney General to supervise all litigation involving the United States or its officers by specifically providing that he “shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their duties." 28 U.S.C. § 519 (emphasis added). The term “special attorney” thus has a known meaning in Title 28 that coincides harmoniously with the broader statutory context. That meaning, per Section 543, consists of attorneys appointed by the Attorney General to assist United States Attorneys a role Special Counsel Smith expressly disclaims [ECF No. 647 pp. 57-58]. This leaves Special Counsel Smith to offer a highly strained reading of “special attorney” in Section 515(b), which is that the term used in that provision somehow denotes a different category of “special attorney" than what Congress specifically created in Section 543 and then referenced again in Section 519-—all within the same public law [see ECF No. 647 pp. 57–58]. Neither the statutory text of Section 515 nor its statutory context gives any reason to believe such discordancy matches congressional intent. United States v. Castleman, 134 S. Ct. 1405, 1417 (2014) (“[T]he presumption of consistent usage [is] the rule of thumb that a term generally means the same thing each time it is used [and] most commonly applie[s] to terms appearing in the same enactment.") (Scalia, J., concurring) (emphasis added). Nor is there any basis to believe that Congress, when it expressly designated the categories of attorneys within the Department whose duties the Attorney General must direct somehow omitted a separate fourth category of United States Attorney-like special counsels nowhere created 31

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 32 of 93 in the 1966 Act. If Congress intended “special attorney” to mean something different in Section 515(b) than in Section 543, it could have used different language, but it did not. 23 Zooming out beyond Sections 543 and 519 as contextual counterpoints, Congress repeatedly has demonstrated its ability to imbue the Attorney General with appointment power over officers and employees-yet Section 515 looks nothing like those examples. In Section 546(a), for instance, codified in the same enactment as Section 515, Congress authorized the Attorney General to “appoint an [interim] United States attorney for the district in which the office of United States attorney is vacant." Id. § 546(a). Likewise, in 18 U.S.C. § 4041, Congress permitted the Attorney General to "appoint such additional officers and employees as he deems necessary [within BOP].” 18 U.S.C. § 4041. And in Section 542(a), Congress authorized the Attorney General to "appoint one or more assistant United States attorneys." 28 U.S.C. § 542(a). Even more, Congress has shown its facility in vesting appointment power in Heads of Departments across the Executive Branch, ranging from the Secretary of Education, to Agriculture, to Transportation, and to Health and Human Services. See 7 U.S.C. § 610(a) (“The Secretary of Agriculture may appoint such officers and employees. ..."); 18 U.S.C. § 4041 (“The Attorney General may appoint such additional officers and employees as he deems necessary."); 49 U.S.C. § 323(a) ("The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers."); 20 U.S.C. § 3461(a) ("The Secretary is authorized to appoint and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Secretary and the Department."); 42 U.S.C. § 913 (The Secretary [of Health and Human Services] is 23 It is true that Section 519 contains a cross-reference to Section 543 whereas Section 515(b) does not, but that technical omission in a numerical cross-reference simply cannot overcome the presumption of consistent usage of "special attorney" in the same enactment. 32

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 33 of 93 authorized to appoint and fix the compensation of such officers and employees. . . ."). None of those examples bears any resemblance to Section 515, and notably, all of the examples use the present tense, unlike Section 515. See Carr, 560 U.S. at 449–451. The Special Counsel has no response to this clear pattern of congressional appointment language, presumably on the general theory that Congress can avail itself of different legislative phrasing as it pleases [ECF No. 374]. But statutory context cannot be discounted, nor can clear statutory patterns be ignored. Simply put, the Special Counsel's strained inferences about Section 515 do not make sense when viewed against the backdrop of Congress's clear and consistent ability to legislate in the appointments arena. c. History: Section 515's predecessor statutes, and the historical use of special-counsel-like figures. Finding little support in the plain language of Section 515(b), the Special Counsel makes a series of unconvincing historical arguments that fail upon close scrutiny [ECF No. 374 p. 14 ("The history of Section 515 removes any question that it authorizes the Attorney General to appoint special attorneys such as the Special Counsel.")]. The relevant history, according to Special Counsel Smith, shows that Congress tacitly authorized- -or silently acquiesced to the use of Section 515 (or its predecessor statutes) to appoint “special attorneys" like himself [ECF No. 374 pp. 14–16; see ECF No. 647 pp. 58-62]. Upon review of the murky historical record, the Court determines that, whatever themes can be drawn from that background, they cannot supplant the plain language of the statute itself, which clearly does not vest the Attorney General with such authority. See In re BFW Liquidation, LLC, 899 F.3d 1178, 1189–90 (11th Cir. 2018). The Special Counsel's historical argument breaks into two parts: (1) Section 515's statutory history going back to 1870, and (2) the historical use of “special attorney”-like figures throughout American history. 33 33

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 34 of 93 i. Statutory History The currently codified version of Section 515(b) can be traced back to the establishment of the Department of Justice in 1870. See An Act to Establish the Department of Justice, ch. 150, 16 Stat. 162, 164–65 (1870) (hereinafter, the "DOJ Act"). The relevant portion of that Act is provided below: And be it further enacted, That it shall not be lawful for the Secretary of either of the executive Departments to employ attorneys or counsel at the expense of the United States; but such Departments, when in need of counsel or advice, shall call upon the Department of Justice, the officers of which shall attend to the same; and no counsel or attorney fees shall hereafter be allowed to any person or persons, besides the respective district attorneys and assistant district attorneys, for services in such capacity to the United States, or any branch or department of the government thereof, unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services were actually rendered, and that the same could not be performed by the Attorney-General, or solicitor-general, or the officers of the department of justice, or by the district attorneys. And every attorney and counselor who shall be specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission 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 the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon such officers by law. Id. at § 17. The latter portion of this section, which largely mirrors the text of the current statute, provides no new insights as to the meaning of Section 515 and contains no indication that any of the “specially retained” attorneys “authorized by law” to be hired do anything other than assist the Attorney General in a non-officer capacity. Put another way, nothing in this language shows Congress's intent that “special assistants”—personnel authorized to "assist in the trial of any case in which the government is interested"—would function with the power of a United States Attorney. 34 =4

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 35 of 93 24 Subsequent enactments do not dictate otherwise. In 1930, Congress added the term "special attorney." Pub. L. No. 71-133, ch. 174, 46 Stat. 170.24 And in 1948, Congress made some non-substantive changes to simplify the provision's wording. Pub. L. No. 80-773, ch. 646, § 62 Stat. 869, 985-86. Again, and mindful that "changes in statutory language generally indicate an intent to change the meaning of the statute," Edwards v. Prime, Inc., 602 F.3d 1276, 1299 (11th Cir. 2010) (citation omitted), these revisions do not indicate that Congress (1) intended the DOJ Act to authorize the appointment of private citizens; or (2) envisioned "special attorneys" as possessing the power or autonomy of contemporary special counsels. Put simply, these amendments offer nothing new from a textual-analysis standpoint. 25 Nevertheless, as Special Counsel Smith sees it, these amendments—and Congress's failure to object to the use of special attorneys in the intervening years—suggest that Congress "ratified" the Executive branch's use of Section 515 for this purpose [ECF No. 647 pp. 58–62; see ECF No. 374 pp. 15-16 ("Despite widespread use of special counsels before these enactments. . . Congress never questioned the Attorney General's power of appointment.")]. For the reasons that follow, 24 Although resort to legislative history is unnecessary and generally ill advised, the Court notes that a House Report accompanying the 1930 amendment suggests that the addition of the phrase "special attorney”—to accompany the already-present “special assistant”—did not effectuate a substantive change to the DOJ Act: "The bill does not provide authority for any new appointments but merely permits commissions to issue to attorneys as special attorneys in those cases where the Attorney General feels that it is undesirable to use the title of 'special assistant to the Attorney General." H.R. Rep. No. 71-229 (1930). As far as the Court can tell, the terms “special assistant" and “special attorney” in Section 515 have the same functional meaning except, potentially, in who they assist special assistants assisting the Attorney General; special attorneys assisting United States Attorneys, see 28 U.S.C. § 543—but any technical daylight between those non- officer employees has not been explored in caselaw. 25 Special Counsel Smith also describes the statutory history leading to Section 515(a) [ECF No. 374 p. 15]. Even if the Court were to accept the inferences drawn by Special Counsel Smith on this point, Section 515(a)'s predecessor statutes-much like the now-codified provision-have nothing to do with appointment power. 35

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 36 of 93 the Court declines to interpret Congress's silence on the intermittent, historical use of "special attorneys” as tantamount to acquiescence here. “Legislative silence is a poor beacon to follow in discerning the proper statutory route." Zuber v. Allen, 396 U.S. 168, 185 (1969); id. at n.21 (explaining that "[t]he verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible"); cf. Rapanos v. United States, 547 U.S. 715, 749-52 (2006) (discussing the limited utility of "congressional acquiescence"); Regions Bank, 936 F.3d at 1196 (same); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985) (“[W]e are chary of attributing significance to Congress' failure to act ."); Bob Jones Univ. v. United ... States, 461 U.S. 574, 600 (1983) ("Nonaction by Congress is not often a useful guide . . . ."). ii. Historical Practice Special Counsel Smith argues that the use of special attorneys throughout American history "amply confirms the Attorney General's authority to appoint the Special Counsel here" [ECF No. 374 p. 16]. The Court disagrees. At most, the history reflects an ad hoc, inconsistent practice of naming prosecutors from both inside and outside of government (typically in response to national scandal) who possessed wildly variant degrees of power and autonomy. The lack of consistency makes it near impossible to draw any meaningful conclusions about Congress's approval of modern special counsels like Special Counsel Smith—much less its acquiescence to Section 515 as a vehicle for such appointments. Special Counsel Smith's broad historical argument proceeds from two mistaken premises. The first is rooted in the notion that “past Attorneys General have ‘made extensive use of special attorneys" by "drawing on the authority to retain counsel originally conferred in 1870” [ECF No. 374 p. 16 (quoting In re Persico, 522 F.2d 41, 45–46 (2d Cir. 1975))]. This incorrectly assumes that “special attorneys” have consistently been appointed pursuant to Section 515 or one of its 36

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 37 of 93 predecessor statutes [ECF No. 374 p. 16]. But a review of historical appointments shows a far spottier picture. Some “special attorneys" were appointed by regulation. E.g., 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805 (appointing Leon Jaworski to investigate and prosecute the Watergate scandal). 26 Some were appointed by statute. E.g., ch. 16, 43 Stat. 6 (1924) (directing President Coolidge to appoint, with Senate confirmation, special prosecutors to investigate Teapot Dome scandal). Some were appointed by both. See In re Sealed Case, 829 F.2d 50, 51–54 (D.C. Cir. 1987) (explaining how Independent Counsel Lawrence Walsh was appointed under the Independent Counsel Act and by separate regulation). And some-as far as this Court can tell— were appointed without any formal statutory or regulatory authority at all. See Terry Eastland, Ethics, Politics, and the Independent Counsel 8-9 (1989). 27 Thus, it can hardly be said that Attorneys General have drawn consistently on Section 515 or its predecessor statutes as a source of appointment authority [see ECF No. 374 p. 16]. Nor is it true that "past Attorneys General" were solely and exclusively responsible for the act of appointment [see ECF No. 374 p. 16]. Notable nineteenth- and twentieth-century special prosecutors were appointed directly by U.S. Presidents. Logan, supra at 10, 13, 28-29 (describing appointments by President Grant (with Senate confirmation) and President Truman). 28 Moreover, 26 Appointing regulations themselves have cited an inconsistent patchwork of statutory authority. Crucially here, many such regulations did not cite Section 515 (or Section 533). The regulation appointing Special Prosecutor Jaworksi serves as an example. 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805 (citing 28 U.S.C. §§ 509, 510 and 5 U.S.C. § 301). So does the regulation appointing Special Counsel Ken Starr to investigate the Whitewater scandal, which (interestingly) cited Section 543. 28 C.F.R. § 603.1 (citing 28 U.S.C. §§ 509, 510, 543 and 5 U.S.C. § 301). 27 See also David A. Logan, Historical Uses of a Special Prosecutor: The Administrations of Presidents Grant, Coolidge and Truman 7, 28-29 (Congressional Research Service Nov. 23, 1973); Andrew Coan, Prosecuting the President 23-40 (2019); [ECF No. 647 pp. 110–11]. 28 These appointments do not appear to have been made by formal order or regulation. 37

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 38 of 93 Some were the practices and protocol for removing such officers varied considerably. removable and were, in fact, removed—at will by Presidents, see id. at 12–13, 33–34 (discussing President Grant and Truman firing special prosecutors), whereas others were largely insulated from removal by certain statutory or regulatory features, e.g., 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805 (dramatically limiting President Nixon's power to remove Special Prosecutor Jaworski, following Nixon's firing of former Special Prosecutor Archibald Cox). The second mistaken premise is that Special Counsel Smith is just another in a long line of "special attorneys” of similar ilk. In fact, very few historic special attorneys resemble Special Counsel Smith. For starters, the title "special counsel" is of fairly recent vintage. Special-attorney- like figures bore many titles throughout the decades. Special attorneys. Special assistants. Special prosecutors. Independent counsels. And most recently, special counsels. In the Court's view, this is not an insignificant semantic detail. See Kavanaugh, supra at 2136 n.5. As discussed below, it is emblematic of the variant backgrounds, roles, and authorities possessed by these historical figures. Moreover, the appointment of private citizens like Mr. Smith- -as opposed to already-retained federal employees appears much closer to the exception than the rule. The historic cases cited in Special Counsel Smith's Opposition demonstrate as much [ECF No. 374 pp. 14–15]; compare United States v. Crosthwaite, 168 U.S. 375, 376 (1897) (appointing "special assistant" from within DOJ to aid in prosecution), and United States v. Winston, 170 U.S. 522, 524-25 (1898) (designating federal district attorney to serve as “special counsel" in another district), and In re Persico, 522 F.2d at 45-46 (appointing internal DOJ attorney to act as "Special Attorney” on organized crime “strike force”), with United States v. Rosenthal, 121 F. 862 (S.D.N.Y. 1903) (seeming to appoint private citizen as "special assistant to the Attorney General"). 38 38

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 39 of 93 And while the past half century has shown an uptick in private-citizen special counsels, that practice is far from uniform. Compare Order No. 3915-2017 (appointing private citizen Robert Mueller as Special Counsel), with Letter from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Dec. 30, 2003) (appointing U.S. Attorney Patrick Fitzgerald as Special Counsel), and Order No. 4878-2020 (appointing U.S. Attorney John Durham as Special Counsel), and Order No. 5730-2023 (appointing U.S. Attorney David Weiss as Special Counsel). Nor is it true that special attorneys have operated with the same degree of power and autonomy as Special Counsel Smith. Consider again the historic cases cited in the Opposition [ECF No. 374 pp. 14–15]: those cases featured special attorneys with varying degrees of authority, most of whom were subject to greater oversight than Special Counsel Smith. See Crosthwaite, 168 U.S. at 376 (describing “special assistant” whose authority was largely limited to aiding the U.S. Attorney, to whom he reported); In re Persico, 522 F.2d at 51-52 (describing special attorney as existing in a "tight bureaucratic hierarchy controlled by the Attorney General” and “under virtually constant specific direction and control”).2 Additionally, on several occasions, 29 30 Congress has helped define and indeed controlled the degree and scope of special counsels' 29 The special attorney in In re Persico operated under the supervision of at least three separate higher-ranking members. 522 F.2d at 45. He functioned in an assisting capacity and lacked the independent authority to take various actions without approval. See id. at 45-46. “The situation here is quite unlike that we would face were the Attorney General to grant such a commission to a single person outside the bureaucratic structure who might take action and incur fiscal and other liabilities for the government without limit.” Id. at 52. 30 The "Special Assistant to the Attorney General” featured in Rosenthal bears closer resemblance to Special Counsel Smith. He “appeared before [a] grand jury, and chiefly conducted the proceedings that resulted in the indictments” of several individuals involved in fraudulent importations of Japanese silks. Rosenthal, 121 F. at 865. In that case, however, the court determined that the special assistant was not an “officer” under the relevant statutes, nor did those statutes authorize him to appear before grand juries. Id. at 866-69. See also supra p. 35 n.25. 39 39

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 40 of 93 authority. See Logan, supra pp. 30-31 (describing Congress's denial of President Truman's request that special prosecutor be given subpoena and immunity-granting power); id. p. 22 (detailing Senate's role in “direct[ing] the President to appoint special counsel" to investigate Teapot Dome). And perhaps most importantly, Congress―historically, and in the present moment―has shown that it knows how to create offices for special counsels. In 1924, Congress did so in response to the Teapot Dome scandal. Ch. 16, 43 Stat. 6 (“[T]he President is further authorized and directed to appoint. . . special counsel who shall have charge and control of the prosecution of such litigation."). In 1978, Congress passed the much-discussed (and now-defunct) Independent Counsel Act. 28 U.S.C. §§ 591 et seq. In fact, there are statutes on the books right now that create offices for "special counsels” with unique jurisdictions. 5 U.S.C. §§ 1211–19 (establishing an "Office of Special Counsel" to protect federal employees from “prohibited personnel practices"); 8 U.S.C. § 1324b(c)(1) (establishing a "Special Counsel for Immigration-Related Unfair Employment Practices" to investigate and prosecute immigration-related employment offenses).³1 All this stands to demonstrate that Congress knows how to legislate in this space. And when it does, it does so expressly and unequivocally. *** In the end, there does appear to be a “tradition" of appointing special-attorney-like figures in moments of political scandal throughout the country's history. But very few, if any, of these 31 The Court expresses no opinion on whether these "special counsels” are truly constitutional officers. Notably, however, in both cases, Congress required these special counsels to be nominated by the President and confirmed by the Senate. 5 U.S.C. § 1211(b) ("The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years."); 8 U.S.C. § 1324b(c)(1) (“The President shall appoint, by and with the advice and consent of the Senate, a Special Counsel for Immigration-Related Unfair Employment Practices... within the Department of Justice to serve for a term of four years.”). 40 40

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 41 of 93 figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision. When scrutinized, this spotty historical backdrop does not "amply confirm[] the Attorney General's authority to appoint the Special Counsel here" [ECF No. 374 p. 16]. Whatever marginal support the history may lend to Special Counsel Smith's position, the inconsistent patchwork of practices detailed above does not show that Congress ratified or acquiesced to the Executive's use of Section 515 (or its predecessor statutes) to appoint special counsels like Mr. Smith. And it is far from sufficient to overcome the plain language of Section 515, which, as covered above, does not confer upon the Attorney General officer-appointing power but merely establishes procedures (oath and commission) for already retained special attorneys who act in an assistant capacity. Special Counsel Smith is not an assistant. D. 28 U.S.C. § 533 The last statute cited in the Appointment Order and relied upon by the Special Counsel is 28 U.S.C. § 533 [ECF No. 374 pp. 12–14; see ECF No. 429 pp. 22-23]. Section 533 is housed within a chapter (Chapter 33) devoted to the FBI. 28 U.S.C. §§ 531-540d. See infra pp. 50–52. It is titled "Investigative and other officials; appointment," and it permits the Attorney General to appoint four different types of "officials" as specified below The Attorney General may appoint officials- to detect and prosecute crimes against the United States; (1) (2) to assist in the protection of the person of the President; and (3) to assist in the protection of the person of the Attorney General. (4) to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General. 41

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 42 of 93 This section does not limit the authority of departments and agencies to investigate crimes against the United States when investigative jurisdiction has been assigned by law to such departments and agencies. 28 U.S.C. § 533.3 32 As a preliminary point, the Appointment Order issued in November 2022 is the first appointment order or regulation that has cited Section 533 as a source of special-counsel- appointing authority. The Special Counsel Regulations promulgated in 1999, which replaced the Independent Counsel regime of the Independent Counsel Act, did not cite Section 533 as a source of authority. 28 C.F.R. §§ 600.1 et seq. (citing 5 U.S.C. § 301; 28 U.S.C. §§ 509, 510, 515–519). Nor did the regulation appointing the Special Prosecutor in United States v. Nixon, 418 U.S. 683 (1974). 38 Fed. Reg. 30738, as amended by 38 Fed. Reg. 32805 (citing 5 U.S.C. § 301; 28 U.S.C. §§ 509, 510). Nor did the Order appointing Special Counsel Robert Mueller, or any preceding special counsel appointing order. Order No. 3915-2017 (citing 28 U.S.C. §§ 509, 510, 515). In the Court's review, Section 533 was cited for the first time in 2022-in the Order appointing Special Counsel Smith—although it has twice been employed since then. 33 Special Counsel Smith argues that Section 533(1) confers on the Attorney General the authority to appoint special counsels, specifically, constitutional officers wielding the "full power and independent authority . . . of any United States Attorney.” 28 C.F.R. § 600.6. After careful review, the Court is convinced that it does not. Congress “does not hide elephants in mouseholes." Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). Special Counsel 32 The misplaced “and” following subsection (2)—which should properly follow subsection (3)— appears to stem from a 2002 amendment to Section 533. See Pub. L. 107-273, § 204(e), 116 Stat. 1758, 1776 (2022). This apparent drafting error does not impact the Court's statutory analysis. 33 Order No. 5730-2023 (appointing David C. Weiss); Order No. 5588-2023 (appointing Robert K. Hur). 42

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 43 of 93 Smith's interpretation would shoehorn appointment authority for United States Attorney- equivalents into a statute that permits the hiring of FBI law enforcement personnel. Such a reading is unsupported by Section 533's plain language and statutory context; inconsistent with Congress's usual legislative practice; and threatens to undermine the “basic separation-of-powers principles" that "give life and content” to the Appointments Clause. Morrison, 487 U.S. at 715 (Scalia, J., dissenting). The Court explains below. i. The term "officials" is not synonymous with "officers." Section 533(1) authorizes the Attorney General to "appoint officials. . . to detect and prosecute crimes against the United States." 28 U.S.C. § 533(1). The parties dispute the proper interpretation of the term "officials." Defendants argue that “officials" is most naturally read as "nonofficer employees" [ECF No. 326 pp. 7–8; see ECF No. 364-1 pp. 16–18]. Special Counsel Smith advances a broader interpretation, arguing that “official[s]' is a generic term that covers both officers and employees" [ECF No. 374 p. 13]. The Court agrees with Defendants. Courts interpreting statutes “look to the plain and ordinary meaning of the statutory language as it was understood at the time the law was enacted.” United States v. Chinchilla, 987 F.3d 1303, 1308 (11th Cir. 2021). “One of the ways to figure out that meaning is by looking at dictionaries in existence around the time of enactment." Id. (citation omitted). Here, applicable dictionary definitions indicate that “officer” and “official," though overlapping in some areas, are Definitions of "officer" emphasize the elevated degree of authority, responsibility, and duty that inheres in the position. Webster's Third New International Dictionary (1961) (defining “officer” as “one who holds an office: one who is appointed or elected to serve in a position of trust, authority, or command esp. as spefic. provided for by law” and “distinguished not synonymous. 43 43

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 44 of 93 from employee and sometimes from official"). 34 These same characteristics are often absent from definitions of “official," which tend to describe a more general class of bureaucratic personnel. Id. (defining “official” as “a person authorized to act for a government . . . esp. in administering or directing in a subordinate capacity," but also referring to "one who holds or is invested with an office"). 35 To be sure, some definitions overlap, and the words share linguistic echoes and roots. See Random House Dictionary of the English Language (1967) (defining “official” as “a person appointed or elected to an office or charged with certain duties, esp. in the government”). But the terms are not synonymous, nor can they be superficially substituted. See Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 618-19. Definitions indicate that “officers" are distinguished from "officials" by the “greater importance, dignity, and independence of [their] position[s]." Officer, Black's Law Dictionary (4th ed. 1951). Put succinctly: while all officers may be officials, not all officials are officers. It may be true that, in some circumstances, the broader term “officials" can operate as a "catch-all phrase that includes both officers and employees" [ECF No. 647 p. 53; see ECF No. 374 p. 12]. "But a statute's meaning does not always 'turn solely' on the broadest imaginable ‘definitions of its component words.' Linguistic and statutory context also matter.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018) (quoting Yates v. United States, 574 U.S. 528, 537 34 Webster's Seventh New Collegiate Dictionary (1971) (defining “officer” as one holding an "office of trust, authority, or command," not simply that of an unspecified “office"); Black's Law Dictionary (4th ed. 1951) (defining “officer” as “one who is lawfully invested with an office," and "one who is charged by a superior power (and particularly by government) with the power and duty of exercising certain functions"); id. (explaining that “officer' is distinguished from an ‘employee' in the greater importance, dignity, and independence of his position, in requirement of oath, bond, more enduring tenure, and fact of duties being prescribed by law"). 35 Webster's Seventh New Collegiate Dictionary (1971) (defining “official” as one “invested with an office," but "esp. a subordinate one"); Black's Law Dictionary (4th ed. 1951) (defining "official" as "[a]n officer; a person invested with the authority of an office"). 44

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 45 of 93 (2015)); see Harrington v. Purdue Pharma L. P., 144 S. Ct. 2071, 2082 (2024) ("When faced with a catchall phrase. . . courts do not necessarily afford it the broadest possible construction it can bear."). As discussed below, when read in context, “officials” is narrowed by what it describes. When read in its specific statutory context, Section 533(1) cannot bear the expansive meaning advanced by Special Counsel Smith. ii. "When words have several plausible definitions, context differentiates among them." United States v. Hansen, 599 U.S. 762, 775 (2023). “[T]he meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." Deal, 508 U.S. at 132. Under the noscitur a sociis canon, “a word is known by the company it keeps." Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961). This canon “is often wisely applied where a word is capable of many meanings in order to avoid giving unintended breadth to the Acts of Congress." Id. Like all statutory terms, “officials” as used in Section 533(1) "does not stand alone but gathers meaning from the words around it.” Id. When “officials” is read in relation to the subsections it describes, it is evident that Section 533(1) does not afford the Attorney General broad power to appoint special counsels. Consider its fellow subsections. Subsections (2) through (4) describe security and investigative employees within the FBI-bureaucratic personnel making up the "broad swath of 'lesser functionaries' in the Government's workforce." Lucia, 585 U.S. at 245 (defining “employees"); see 28 U.S.C. § 533(2)-(4). While undoubtedly important, these individuals cannot fairly be characterized as constitutional officers who, by definition, exercise "significant authority pursuant to the laws of the United States.” Buckley, 424 U.S. at 126; see Edmond, 520 U.S. at 662 (describing authority as "the line between officer and nonofficer”). It is implausible, then, that Congress intended to wedge appointment power for special counsels 45

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 46 of 93 possessing the "full power . . . of any United States Attorney" into a statute concerning low- and mid-level law enforcement personnel in a statutory section governing the FBI. 28 C.F.R. § 600.6.36 Section 533(1)'s use of the phrase “detect and prosecute crimes” does not otherwise transform the provision into a grant of special-counsel-appointing authority. 28 U.S.C. § 533(1) (emphasis added). In the context of this FBI provision, and drawing from applicable dictionary definitions, the meaning of "prosecute" naturally encompasses FBI employees who are engaged or involved in federal investigations and prosecutions. See, e.g., Prosecute, Black's Law Dictionary (3d ed. 1933) (“To follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally."). 37 This could include FBI attorneys and other legal staff, but it also naturally encompasses non-lawyer FBI personnel involved in prosecutorial efforts to pursue and/or investigate a crime or claim, such as FBI agents, intelligence officials, and forensic specialists. At any rate, as Section 533(1)'s subsections clarify, it authorizes only the hiring of 36 This reading comports with how “officials” is used elsewhere in Chapter 33. Section 534 uses the term to describe positions that are far more consistent with an "employee" designation than an "officer" designation. See 28 U.S.C. § 534 (describing “officials" that the Attorney General "may appoint. . . to perform the functions authorized by this section"). Moreover, Congress's uses the express phrase "officers and employees” (not the umbrella term “officials") elsewhere in the same chapter. 28 U.S.C. § 535(a) ("The Attorney General and the [FBI] may investigate any violation of Federal criminal law involving Government officers and employees ...."); see also 28 U.S.C. §§ 509, 510 (differentiating between "officers" and "employees"). Reading “officials" to mean "officers and employees” would conflict with the meaningful variation canon. See In re Failla, 838 F.3d 1170, 1176 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012)). 37 Webster's Third New International Dictionary (1961) (providing various formulations, including "to follow, follow after, pursue”; “to follow to the end: press to execution or completion: pursue until finished"; "to develop in detail: go further into: INVESTIGATE”; “to engage in or proceed with: carry on: PERFORM"; "to institute legal proceedings against, esp.: to accuse of some crime or breach of law or to pursue for redress or punishment of a crime or violation of law in due legal form before a legal tribunal”; “to institute legal proceedings with reference" to a “claim,” an “action,” or a “prosecution” for “public offenses”). 46

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 47 of 93 prosecutorial employees-not constitutional officers like Special Counsel Smith. See 28 U.S.C. §§ 533(2)–(4). Nor is the Court persuaded by the Special Counsel's suggestion that reading “officials" as "non-officer employees" would render superfluous the term “employees" as used in Section 533(1) [ECF No. 647 p. 53]. This posits an artificial binary. It fails to consider the gradient of authority that exists between the lowest-level employees and constitutional “Officers” wielding “significant authority pursuant to the laws of the United States." Buckley, 424 U.S. at 126. Take the FBI as an example. An FBI agent is an “employee.” The agent's supervisor—who possesses more responsibility and influence than the agent―may rightly be deemed an “official." And the FBI Director at the top of the organizational chart is a constitutional "Officer” appointed by the President and confirmed by the Senate. And among this sliding-scale of authority, context shows that "official" as used in Section 533(1) cannot be fairly read to mean constitutional officer. iii. Congress tracks the language of the Appointments Clause when vesting officer-appointing power in department heads. Reading “officials" as "officers and employees” would also be contrary to Congress's typical legislative practice. As indicated above, when Congress "by Law vest[s] the Appointment of such inferior Officers . . . in the Heads of Departments," it does so in a particular way. Art. II, § 2, cl. 2. A survey of generalized vesting statutes throughout the United States Code shows that Congress routinely uses the term "officers," or the phrase "officers and employees" when vesting officer-appointing power in department heads. 38 Consider the following examples, some of which were covered above: 38 The Court refers to “generalized” vesting statutes as those which concern the appointment of a largely undefined group of individuals. See 49 U.S.C. § 323(a) (“The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers."). These are distinct from position-specific statutes. See 47

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 48 of 93 "The Secretary of Agriculture may appoint such officers and employees, subject to the provisions of chapter 51 and subchapter III of chapter 53 of Title 5, and such experts, as are necessary to execute the functions vested in him by this chapter.” 7 U.S.C. § 610(a) (emphasis added). "The Secretary [of Education] is authorized to appoint and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Secretary and the Department.” 20 U.S.C. § 3461(a) (emphasis added). "The [HHS] Secretary is authorized to appoint and fix the compensation of such officers and employees, and to make such expenditures as may be necessary for carrying out the functions of the Secretary under this chapter.” 42 U.S.C.A. § 913 (emphasis added). "The Secretary of Transportation may appoint and fix the pay of officers and employees of the Department of Transportation and may prescribe their duties and powers." 49 U.S.C. § 323(a) (emphasis added). Congress employed this same formulation when vesting officer-appointing power in the Attorney General for the Bureau of Prisons: "The Attorney General may appoint such additional officers and employees as he deems necessary.” 18 U.S.C. § 4041. To be sure, there may be instances in which Congress uses “officials" to confer officer- appointing power [ECF No. 640 p. 3 (supplemental authority)], but in those instances, Congress still tracks the constitutional language of the Appointments Clause in a way that reflects officer status—that is, by appending some variation of “appointed by the President, by and with the advice and consent of the Senate” to make explicit that “officials” means "officers."³9 10 U.S.C. § 137a(a) (authorizing the hiring of six “officials" who "shall be appointed from civilian life by the President, by and with the advice and consent of the Senate"); 22 U.S.C. § 285a(a)(1)(B) (describing "officials required by law to be appointed by and with the advice and consent of the Senate"); 22 U.S.C. § 290g-1(a)(2) (same); 22 U.S.C. § 2651a(d) (authorizing appointment of 28 U.S.C. § 542(a) ("The Attorney General may appoint one or more assistant United States attorneys in any district when the public interest so requires."). 39 The term "officials" appears nowhere in the Appointments Clause or in the Constitution. 48

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 49 of 93 officials "who are otherwise authorized to be appointed by the President, by and with the advice and consent of the Senate"); 28 U.S.C. § 561(c) (describing U.S. marshals as “officials" appointed by the President "by and with the advice and consent of the Senate"); 50 U.S.C. § 3369d(c)(1)(A) (authorizing appointment of "officials of such agency or department who occupy a position that is required to be appointed by the President, with the advice and consent of the Senate”). 40 41 Congress regularly intends certain words and phrases “to be read as terms of art connecting the congressional exercise of legislative authority with the constitutional provision . . . that grants Congress that authority." Scheidler v. Nat'l Org. for Women, Inc., 547 U.S. 9, 17-18 (2006) (collecting cases); see Hansen, 599 U.S. at 775 (“Here, the context of these words—the water in which they swim-indicates that Congress used them as terms of art."); F.A.A. v. Cooper, 566 U.S. 284, 292-93 (2012). That seems to be the case in the appointments context, where Congress adheres closely to the constitutional text, and it would be consistent with the Supreme Court's 40 The remaining statutes cited in the Special Counsel's notice of supplemental authority are inapplicable for one of two reasons. First are those which do not confer officer-appointing power at all. 10 U.S.C. § 397 (providing that the Secretary "shall designate” an official to serve as principal advisor from “among officials appointed . . . by and with the advice and consent of the Senate")), 10 U.S.C. § 988(c) (definitions section imbedded in statute that does not confer appointing power), 16 U.S.C. § 831e (mandating that appointments of “employees or officials”— which are provided for elsewhere in Chapter 12A (Tennessee Valley Authority)-be nonpolitical). Second are those in which, as best the Court can tell, the term “official” describes a position that lacks the “significant authority” commensurate with a constitutional officer, Buckley, 424 U.S. at 126, such that the Appointments Clause is not implicated. 6 U.S.C. § 142(a) (providing for appointment of "senior official" to "assume primary responsibility for privacy policy” at DHS, and requiring said official to obtain approval from Secretary for subpoenas); 50 U.S.C. § 4306 (authorizing "[t]he President to appoint... an official to be known as the alien property custodian"). To the extent the "officials" in the second category of examples are deemed somehow to veer into “officer” territory—a proposition untested in caselaw—those statutes would be clear outliers against the weight of contrary statutory language described above. 41 The Constitutional Lawyers' amicus brief includes a lengthy string citation to provisions in which “official” subsumes “officer" [ECF No. 429 p. 22 n.4]. These provisions, mostly definitional, do not confer officer-appointing power. 49

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 50 of 93 demonstrated preference in this realm. See Edmond, 520 U.S. at 657–58; Weiss, 510 U.S. at 171– 72; Germaine, 99 U.S. at 510.42 In sum, this consistent legislative practice shows that Section 533(1)'s unspecified use of "officials" as opposed to “officers,” or “officers and employees”—“is not merely stylistic." Edmond, 520 U.S. at 657. Rather, it is telling of Congress' intent. As the collection of statutes above shows, "had Congress meant to confer 'officer'-appointing power via § 533 or any other provision, ‘it easily could have done so." Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 619 (quoting Baker Botts LLP v. ASARCO LLC, 576 U.S. 121, 129 (2015)). iv. Section 533's placement in the statutory scheme compels a more circumscribed reading. As noted above, Section 533 is housed in a chapter concerning the “Federal Bureau of Investigation.” 28 U.S.C. §§ 531-540d.43 It is sandwiched between 28 U.S.C. § 532, a statute 42 The Special Counsel invokes Edmond to argue that the Supreme Court found officer-appointing authority in a "default statute" with language more general than that of Section 533 [ECF No. 374 p. 12]. Edmond did find statutory appointment authority for Coast Guard judges in 49 U.S.C. § 323(a). 520 U.S. at 656. But merely comparing the statutes' generality ignores a critical, distinguishing feature: unlike Section 533, the statute in Edmond expressly uses the word "officer." 49 U.S.C. § 323(a) (authorizing appointment of "officers and employees of the Department of Transportation"). Edmond held that a vesting statute need “not specifically mention" a particular officer, so long as the statute's "plain language . . . appears to give the Secretary power to appoint them." Edmond, 520 U.S. at 656. The text of 49 U.S.C. § 323(a) passed that test. Section 533 does not. 43 Special Counsel Smith insists that consideration of Chapter 33's title, "Federal Bureau of Investigation," cannot be considered unless the Court finds that Section 533 is ambiguous [ECF No. 374 p. 13]. It is true that “the title of a statute cannot limit the plain meaning of the text" and should be used "[f]or interpretive purposes... only when it sheds light on some ambiguous word or phrase." Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (internal brackets and quotations omitted). Still, however, there can be no dispute that evaluation of a statute's placement in its statutory scheme is a permissible tool of statutory construction. In any event, with respect to consideration of Section 533's "title," the Court sees no legal barrier to consulting the title here given the parties' arguments—although such consideration merely confirms the conclusion that the use of the word "officials" in Section 533(1) does not confer officer-appointing power in the manner claimed by the Special Counsel. 50

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 51 of 93 about the appointment of the FBI Director, and 28 U.S.C. § 534, which concerns the acquisition, preservation, and exchange of evidence in criminal cases. Given Section 533's location, it is exceedingly unlikely that Congress intended to tuck special-counsel-appointing power into a chapter devoted to the FBI.44 Several of the surrounding chapters are clearly more natural homes for such a statute. See 28 U.S.C. §§ 501-530D (Attorney General); 28 U.S.C. §§ 561-575 (U.S. Attorneys). And as mentioned at length above, until 1999, there was an entire chapter in the DOJ Section of Title 28 devoted to such independent counsel figures. 28 U.S.C. §§ 591-599 (Independent Counsel Act). Section 533's heading, “Investigative and other officials; appointment," provides an additional indicator that the provision is cabined to low- or mid-level FBI personnel. While "headings are not commanding, they supply clues" of congressional intent. Yates, 574 U.S. at 540. Unlike prior statutes concerning independent counsels, Section 533's heading lacks any indication that it concerns a "Special Counsel," or deals with prosecutorial power at all. Compare 28 U.S.C. § 533 with 28 U.S.C. § 592 ("Preliminary investigation and application for appointment of an independent counsel"), and 28 U.S.C. § 594 ("Authority and duties of an independent counsel"), and 28 U.S.C. § 594 (United States attorneys); cf. Pub. L. No. 95–521, § 601, ch. 39 (Special Prosecutor), 92 Stat. 1824 (Oct. 26, 1978). It would be odd indeed if lawmakers—in establishing an office with the prosecutorial might of a United States Attorney-made no such mention in the 44 In response, Special Counsel Smith cites two out-of-circuit cases in which courts-both in footnotes extended Section 533 beyond the FBI context [ECF No. 374 p. 14 (citing United States v. Hasan, 846 F. Supp. 2d 541, 546 n.7 (E.D. Va. 2012) and United States v. Fortuna, No. 12-cr- 636 2013 WL 1737215, at *2 n.8 (D.N.J. Apr. 22, 2013))]. These cases did not involve Appointments Clause challenges. They did not engage with the text of 28 U.S.C. § 533 or its location in the United States Code. And they did not authorize appointment of constitutional "officers" with the power of the Special Counsel; rather, they approved appointment of ATF officials (i.e., agents). Accordingly, the Court does not find them persuasive in this context. 51

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 52 of 93 statute's heading. If Congress had intended to create such a powerful and significant office in Section 533, it would not have obscurely buried the lede and omitted any such reference from the statute's heading, or more importantly, from the text of the provision itself. *** For the reasons stated above, as a matter of plain text, statutory context, and legislative practice, Section 533-cited in an appointment order for the first time in November 2022 as purported authority—does not provide a basis in “Law” for the appointment of Special Counsel Smith. Art. II, § 2, cl. 2. E. Special Counsel Smith's interpretation undermines the separation-of-powers principles that animate the Appointments Clause and destabilizes Congress's carefully crafted statutory structure for the DOJ. On a more fundamental level, adopting the Special Counsel's untenable interpretation of Sections 515(b) and 533 erodes the "basic separation-of-powers principles" that "give life and content" to the Appointments Clause by wresting from Congress its constitutionally prescribed role in the officer-appointing process. Morrison, 487 U.S. at 715 (Scalia, J., dissenting). It also destabilizes Congress's carefully crafted statutory structure for DOJ. As the discussion in this Order demonstrates, Congress has carefully enacted a statutory scheme, consistent with the Appointments Clause, governing the appointment of high-level federal prosecutors. See Calabresi & Lawson, supra pp. 113-115. Most relevant here, United States Attorneys, the officers most closely resembling Special Counsel Smith, see 28 C.F.R. § 600.6, must be nominated by the President and confirmed by the Senate. 28 U.S.C. § 541. Adopting the position of the Special Counsel allows any Attorney General, without Congressional input, to circumvent this statutory scheme and appoint one-off special counsels to wield the immense power of a United States Attorney. This strips from Congress its role in the appointments process, and it 52 52

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 53 of 93 does so, moreover, in a highly sensitive area involving “life, liberty, and reputation.” Robert H. Jackson, U.S. Att'y Gen., Address at the Second Annual Conference of United States Attorneys: The Federal Prosecutor 1 (Apr. 1, 1940) (describing immense power of federal prosecutors over citizenry). Absent a statute vesting appointing power elsewhere, the "default manner of appointment for inferior officers" is Presidential nomination and Senate confirmation. Edmond, 520 U.S. at 660. And while Congress may "vest the Appointment of such inferior Officers, as they see proper, in... Heads of Departments," Art. II, § 2, cl. 2, it did not do so in the cited statutes. Such a broad reading results in precisely the type of diffusion and encroachment that concerned the Framers in drafting the Appointments Clause. Freytag, 501 U.S. at 883–86; Weiss, 510 U.S. at 187-89 (Souter, J., concurring) ("If the structural benefits the Appointments Clause was designed to provide are to be preserved . . . no branch may aggrandize its own appointment power at the expense of another."). The Court thus declines to dilute the appointment power by reading Sections 515(b) and 533(1) as ceding a core legislative function to another branch. See Freytag, 501 U.S. at 885 ("The Framers recognized the dangers posed by an excessively diffuse appointment power and rejected efforts to expand that power. So do we.") (internal citation omitted); id. at 884–86. IV. United States v. Nixon The parties disagree about the precedential value of a passage from United States v. Nixon, 418 U.S. 683 (1974) [ECF No. 326 pp. 8–9; ECF No. 374 pp. 8–10; ECF No. 414 pp. 3-4; ECF No. 364-1 pp. 22-23]. That passage is reproduced below. The Court emphasizes the statement that serves as the focal point of the parties' dispute. Under the authority of Art. II, § 2, 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 53 53

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 54 of 93 to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. Id. at 694-95 (emphasis added and footnote omitted).45 Defendants argue that Nixon's statement about the Attorney General's statutory authority is non-binding dictum and thus should not control the Court's statutory analysis (as done above) [ECF No. 326 pp. 8–9; ECF No. 414 pp. 3-4]. The Special Counsel argues that this statement “formed a necessary element of [Nixon's] holding," and therefore constitutes binding precedent [ECF No. 374 p. 9]. Following a comprehensive review of the Supreme Court record, 46 the Court concludes that the disputed statement from Nixon is dictum. The issue of the Attorney General's appointment authority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedly precedential in several areas—for example, in its pronouncements on the justiciability of an intra- branch controversy; the test for issuing Rule 17(c) subpoenas; and application of executive privilege in the face of a valid subpoena. Those issues were presented, argued, and carefully considered. The same is not true of the Attorney General's statutory appointment authority. At most, Nixon assumed that antecedent proposition, without deciding it. United States v. Verdugo- Urquidez, 494 U.S. 259, 272 (1990). Thus, Nixon's passing remarks on that point are not binding 45 For the sake of completeness, the omitted footnote provides, in relevant part, that “[t]he regulation issued by the Attorney General pursuant to his statutory authority, vests in the Special Prosecutor plenary authority to control the course of investigations and litigation related to" Watergate. Id. at 694 n.8. 46 The Court collected and reviewed all available filings in United States v. Nixon, 418 U.S. 683 (1974) (No. 73-1766), and Nixon v. United States, 418 U.S. 683 (1974) (No. 73-1834). This includes the applicable cert petitions and merits briefing, along with amicus briefs, the full appendix, and the consolidated oral argument transcript. Oral Argument, United States v. Nixon, 418 U.S. 683 (1974) (Nos. 73-1766, 73-1834). 54

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 55 of 93 precedent in "future cases," as here, “that directly raise the question[]." Id. Giving these remarks precedential weight runs the risk that “stray language” from the Nixon opinion "will take on importance in a new context that its drafters could not have anticipated." Rudolph v. United States, 92 F.4th 1038, 1045 (11th Cir. 2024). This section proceeds in four parts. The Court (1) reviews the terms “holding” and “dicta"; (2) provides context to situate the controversy in Nixon; (3) analyzes the disputed passage from Nixon; and (4) discusses the proper weight that nevertheless should be accorded to the Nixon dictum. This section is lengthy because the Nixon dictum has taken on significance in related cases, and a full explication of the record is necessary. See In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987); In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019). A. Legal Standards "Not all text within a judicial decision serves as precedent.” Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016). Thus, distinguishing between precedential “holdings” and non-binding "dicta" is crucially important. See Fresh Results, LLC v. ASF Holland, B.V., 921 F.3d 1043, 1049 (11th Cir. 2019). A holding "comprises both the result of the case and those portions of the opinion necessary to that result.” United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir. 2019) (internal quotation marks and citations omitted); see Black's Law Dictionary (11th ed. 2019) (defining “holding” as “[a] court's determination of a matter of law pivotal to its decision; a principle drawn from such a decision."). Dictum, on the other hand, is "a statement that neither constitutes the holding of a case, nor arises from a part of the opinion that is necessary to the holding of the case." United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (quotation marks omitted). While courts must dutifully follow precedential holdings, “dicta is not 55

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 56 of 93 binding on anyone for any purpose," Edwards, 602 F.3d at 1298, although Supreme Court dicta does merit consideration as discussed below. Statements in an opinion that extend beyond the scope of the issues presented, briefed, and argued generally constitute dicta. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” United States v. Jackson, 55 F.4th 846, 853 (11th Cir. 2022) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)); United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (“The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point.”). The same is generally true of assumptions that are peripheral to the issues presented. "The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, and such assumptions-even on jurisdictional issues- -are not binding in future cases that directly raise the questions." Verdugo-Urquidez, 494 U.S. at 272 (internal citations omitted); Garner et al., supra at 84 ("Judicial opinions are always premised on a series of assumptions about what the law is. Yet those assumptions—whether implicit or explicit aren't generally considered precedential."). As explained by Chief Justice John Marshall: It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. Cohens v. State of Virginia, 19 U.S. 264, 399–400 (1821). 56

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 57 of 93 Lastly, "not all dicta are created equal." Farah v. U.S. Att'y Gen., 12 F.4th 1312, 1323 (11th Cir. 2021) (Pryor, C.J.) (quoting Garner et al., supra at 69). Dicta from the Supreme Court are entitled to considerable—and in some cases, even precedential—weight. Schwab v. Crosby, 451 F.3d 1308, 1325-26 (11th Cir. 2006) (collecting cases); Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997) (emphasizing that “dicta from the Supreme Court is not something to be lightly cast aside"). Inferior courts must accord Supreme Court dicta appropriate respect and deference. United States v. Becton, 632 F.2d 1294, 1296 n.3 (5th Cir. 1980). B. Decisional Context To discern whether the disputed passage from Nixon constitutes part of its holding, it helps to situate it in context, including by ascertaining the precise action taken by the trial court. Rudolph, 92 F.4th at 1045 (advising lower courts to "consider opinions in their context, including the questions presented and the facts of the case" in evaluating the precedential value of statements therein); see Nat'l Pork Producers Council v. Ross, 598 U.S. 356, 373–74 (2023) (emphasizing that Supreme Court opinions “dispose of discrete cases and controversies and they must be read with a careful eye to context"); Garner et al., supra at 52. Nixon involved Special Prosecutor Leon Jaworski's investigation and prosecution of those involved in the Watergate scandal. The Special Prosecutor issued a subpoena to President Nixon- an unindicted co-conspirator-requiring the production of certain tapes and documents relevant to the investigation. Nixon, 418 U.S. at 686. Counsel for President Nixon moved to quash the subpoena, raising three principal arguments. United States v. Mitchell, 377 F. Supp. 1326, 1328– 29 (D.C.C. 1974). First, President Nixon argued that "courts are without authority to rule on the scope or applicability of executive privilege." Id. at 1329. The district court found this jurisdictional 57

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 58 of 93 argument to be foreclosed by circuit precedent. Id. (citing Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973)). Second-and most important to Defendants' Motion at issue here-President Nixon argued that the intra-branch dispute presented a nonjusticiable political question. Id. Referencing the appointing regulation, which carried “the force of law,” the district court found that the Special Prosecutor possessed sufficient independence to create a justiciable controversy. Id. at 1329 & n.7 (citing 38 Fed. Reg. 30,738). Third, President Nixon argued on the merits that the requirements for issuance of a Rule 17(c) subpoena had not been satisfied, also asserting a confidentiality privilege. Id. at 1329. The district court disagreed. Id. at 1330–31. Notably, none of these arguments (or the district court's resolution thereof) had anything to do with the Attorney General's statutory appointment authority or the Appointments Clause more generally. At the Supreme Court, President Nixon re-raised the same challenges. 47 Nixon, 418 U.S. at 686. On the justiciability question, President Nixon again asserted that the intra-branch nature of the dispute presented a nonjusticiable political question outside the purview of the judiciary. Id. at 691-92.48 The Supreme Court ultimately rejected this argument. Id. at 697. Before doing so, however, the court offered a prefatory paragraph to contextualize “the nature of the proceeding for which the evidence is sought." Id. at 694. The relevant portion of that paragraph-which was also reproduced above, supra pp. 53-54 provides: 47 There was no intermediate appellate review in Nixon; the Supreme Court granted certiorari before judgment. Nixon, 418 U.S. at 686–87. 48 See Brief for the Respondent, Cross-Petitioner at 27-48; id. at 16-17 (“Under the standards set forth in Baker v. Carr, 369 U.S. 186 (1962), this intra-branch dispute raises a political question which the federal courts lack jurisdiction to decide. The district court does not have the power to substitute its judgement for that of the President on matters exclusively within the President's discretion."); id. at 29–30 (challenging the “authority of the court or any branch of the government to intervene in a solely intra-branch dispute”); id. at 41 (same); Reply Brief for the Respondent, Cross-Petitioner at 4-13. 58

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 59 of 93 Under the authority of Art. II, § 2, 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 States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. Id. at 694-95 (footnote omitted). Following this stage-setting paragraph, the Supreme Court determined that the extant regulation's delegation of authority—both in the independence it created in Special Prosecutor Jaworksi and in the limitations it placed on his removal-established a justiciable case or controversy. Id. at 694–98; see id. at 696 (explaining that “[s]o long as this regulation remains in force the Executive Branch is bound by it”). "In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability.” Id. at 697. C. Analysis With this context in mind, the Court proceeds to analyze the disputed statement from Nixon, ultimately concluding that it is dictum. i. The Attorney General's appointment authority was not an issue before the Supreme Court in Nixon. In Nixon, the Supreme Court granted certiorari to decide six questions: five from the Special Prosecutor's petition, and one from President Nixon's cross-petition. 49 See Petition and 49 The Nixon Court also ordered the parties to file supplemental briefs on the following two questions: (1) "Is the District Court order of May 20, 1974, an appealable order?” and (2) "Does this Court have jurisdiction to entertain and decide the petition for mandamus transmitted by the Court of Appeals to this Court?” Docket Sheets (Nos. 73-1766, 73-1834), Neither of those questions nor the briefing submitted in response-concerned the validity of the Special 59

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 60 of 93 Cross-Petition for Writ of Certiorari Before Judgment, United States v. Nixon, 418 U.S. 683 (1974) (Nos. 73-1766, 73-1834). Those questions are copied verbatim below: Special Prosecutor's Petition 1. Whether the President, when he has assumed sole personal and physical control over evidence demonstrably material to the trial of charges of obstruction of justice in a federal court, is subject to a judicial order directing compliance with a subpoena duces tecum issued on the application of the Special Prosecutor in the name of the United States. 2. Whether a federal court is bound by the assertion by the President of an absolute "executive privilege" to withhold demonstrably material evidence from the trial of charges of obstruction of justice by his own White House aides and party leaders, upon the ground that he deems production to be against the public interest. 3. Whether a claim of executive privilege based on the generalized interest in the confidentiality of government deliberations can block the prosecution's access to evidence material and important to the trial of charges of criminal misconduct by high government officials who participated in those deliberations, particularly where there is a prima facie showing that the deliberation occurred in the course of the criminal conspiracy. 4. Whether any executive privilege that otherwise might have been applicable to discussions in the offices of the President concerning the Watergate matter has been waived by previous testimony pursuant to the President's approval and by the President's public release of 1,216 pages of edited transcript of forty-three Presidential conversations related to Watergate. 5. Whether the district court properly determined that a subpoena duces tecum issued to the President satisfies the standards of Rule 17(c) of the Federal Rules of Criminal Procedure because an adequate showing has been made that the subpoenaed items are relevant to issues to be tried and will be admissible in evidence. President Nixon's Cross-Petition 1. Whether, under the Constitution, a grand jury has the authority to charge an incumbent President as an unindicted co-conspirator in a criminal proceeding. As the Nixon opinion reflects, the questions presented—that is, “[t]he questions actually before the Court”—were “investigated with care, and considered in their fullest extent." Cohens, Prosecutor. See Supplement Brief for the Petitioner, No. 73-1766; Brief for Respondent, Cross- Petitioner, No. 73-1766. 60 60

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 61 of 93 19 U.S. at 399. The same is not true of the Attorney General's statutory appointment authority, a peripheral subject that was not raised in the case. To reiterate, “[t]he Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, and such assumptions—even on jurisdictional issues- -are not binding in future cases that directly raise the questions." Verdugo-Urquidez, 494 U.S. at 272; see Becton, 632 F.2d at 1296 n.3; Caraballo-Martinez, 866 F.3d at 1245; see also United States v. Manafort, 321 F. Supp. 3d 640 (E.D. Va. 2018).50 Because the statutory-authority question was not before the Supreme Court, the opinion's single prefatory sentence does not amount to a precedential holding. The Special Prosecutor's validity was uncontested. ii. A case is not "binding precedent' on points that were not there raised in briefs or argument nor discussed in the opinion." Bourdon v. United States Dep't of Homeland Sec., 940 F.3d 537, 548-49 (11th Cir. 2019) (internal quotation marks omitted); Garner et al., supra at 84–85. The rationale behind such a rule is sensible. Where "the issue addressed in the passage was not presented as an issue, [and] hence was not refined by the fires of adversary presentation,” it is far less likely to constitute a carefully reasoned, essential part of the court's opinion. United States v. Crawley, 837 F.2d 291, 293 (7th Cir. 1988) (Posner, J.) (defining “dictum"). Across hundreds of pages of briefing (and hours of oral argument) in Nixon, neither party challenged the Special Prosecutor's validity or the Attorney General's appointment authority. In fact, on numerous occasions, President Nixon expressly stated that he did not contest these points. Brief for the Respondent at 42 (stating, in reference to the regulation, that “the President has not 50 In United States v. Manafort, 321 F. Supp. 3d 640 (E.D. Va. 2018), the court determined that Nixon's line "[s]o long as this regulation is extant it has the force of law," was dictum. Id. at 659 (quoting Nixon, 418 U.S. at 695); see also id. ("Nixon is inapposite inasmuch as the holding there did not adjudicate the legal authority of a special prosecutor."). 61

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 62 of 93 in the past nor does he here challenge those powers that were given to the Special Prosecutor in Watergate-related matters"); Reply Brief for the Respondent at 8 (emphasizing that "[w]e do not contest the Special Prosecutor's assertion that his authority is derived from the Attorney General"); see Tr. of Oral Argument, Nos. 73-1766, 73-1834. The Special Counsel acknowledges as much [ECF No. 374 p. 9 (accepting that “President Nixon did not contest that statutory analysis")]. This absence of argument on the appointment-authority point further cements the disputed passage's status as dictum. The parties themselves litigated the entire case without touching the issue. The Court's statement on the Attorney General's statutory authority was not "necessary" to its resolution of the justiciability issue. iii. Even though the statutory-authorization question was not at issue, and despite its absence from the record, Special Counsel Smith still contends that Nixon's comment on this point "formed a necessary element of its holding” [ECF No. 374 p. 9]. He argues that "finding statutory authority for the appointment was thus central to the Court's conclusion that '[s]o long as this regulation [setting forth the Special Prosecutor's authority] is extant it has the force of law"" [ECF No. 374 p. 9 (quoting Nixon, 418 U.S. at 695) (alterations in Opposition)]. This "read[s] too much into too little." Nat'l Pork Producers Council, 598 U.S. at 373 (stressing that opinions must "be read with a careful eye to context"). The disputed passage is located within a prefatory, stage-setting paragraph which merely served to tee up the case-or-controversy analysis that followed. As recap, President Nixon argued that the case presented a nonjusticiable political question by virtue of the intra-branch nature of the dispute. See supra p. 58 n.48. The Nixon Court disagreed. “[J]usticiability does not depend on such a surface inquiry.” 418 U.S. at 693. Instead, Nixon stated that “courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id. (citation omitted). In doing so, Nixon zoomed out and provided a high-level 62 62

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 63 of 93 background paragraph explaining how the case landed at the Supreme Court. Id. at 694 (“Our starting point is the nature of the proceeding for which the evidence is sought-here a pending criminal prosecution.”). It is within this overview paragraph that the disputed dictum is located. Properly situated in this context, therefore, Nixon's remark on the Attorney General's statutory authority is more akin to an “aside like statement” or digression, United States v. Files, 63 F.4th 920, 929 & n.7 (collecting similar examples), than a "determination of a matter of law pivotal to its decision," Holding, Black's Law Dictionary (11th ed. 2019). See Georgia Ass'n of Latino Elected Offs., Inc. v. Gwinnett Cnty. Bd. of Registration & Elections, 36 F.4th 1100, 1119– 20 (11th Cir. 2022) (determining an earlier case's “prefatory statement” about a statute's operation was dictum because it wasn't germane to resolving the issues presented). To be sure, that President Nixon delegated to the Special Prosecutor (via the regulation) the power to "determin[e] whether or not to contest the assertion of 'Executive Privilege' or any other testimonial privilege,” 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805, was integral to Nixon's justiciability holding. 418 U.S. at 694–97. This delegation assured the Supreme Court that "concrete adverseness" existed between the parties. Id. at 697 (quoting Baker v. Carr, 369 U.S. at 204); see id. at 696 (explaining that “[s] o long as this regulation remains in force the Executive Branch is bound by it”). In other words, two features were essential to the justiciability holding: (1) the nature of the parties' relationship as defined in the very broad delegation of authority in the regulation; and (2) the fact that the regulation had not been revoked. But Nixon's passing reference to statutory authority was not essential to the analysis, and nothing in the remainder of the decision suggests that the Supreme Court was reasoning from its earlier passing 63 63

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 64 of 93 remark. 51 See Sarnoff v. Am. Home Prod. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (Posner, J.) (defining as "dictum” a “statement in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding—that, being peripheral, may not have received the full and careful consideration of the court that uttered it"). D. As dictum, Nixon's statement is unpersuasive. Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is "well thought out, thoroughly reasoned, and carefully articulated" is due near-precedential weight. Schwab, 451 F.3d at 1325-26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). The Nixon dictum is neither “thoroughly reasoned" nor “of recent vintage." Id. at 1325-26. For these reasons, the Court concludes it is not entitled to considerable weight. i. Nixon did not analyze the relevant statutes. First, Nixon does not engage in any statutory analysis of the cited provisions. Although Nixon "gave passing reference to the cited statutes," the opinion “provided no analysis of those provisions' text." Trump, 144 S. Ct. at 2351 (Thomas, J., concurring). Indeed, the extent of Nixon's discussion of the statutes comes in a single sentence: "[Congress] 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.” 418 U.S. at 694. No more is provided. Thus, giving Nixon's dictum near-precedential weight in resolving the Motion-which calls for a thorough analysis of 51 Nor can it be said that the Nixon Court's own language—“acting pursuant to [statutes]"- contains any substantive commentary on the validity of the cited statutes for appointment purposes [ECF No. 647 pp. 116-117 (Meese amici argument)]. 64

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 65 of 93 the statutory text-runs the risk that the Supreme Court's "language will take on importance in a new context that its drafters could not have anticipated." Rudolph, 92 F.4th at 1045. ii. Nixon was decided prior to the development of recent Appointments Clause jurisprudence. Second, Nixon was decided in 1974. In the subsequent half century, the Supreme Court has placed a renewed emphasis on structural principles underpinning the Appointments Clause, beginning with Buckley v. Valeo, 424 U.S. 1 (1976), and continuing through various other important cases. See generally Calabresi & Lawson, supra at 124–25 (examining the "rebirth of the Appointments Clause"); Freytag, 501 U.S. at 878; Edmond, 520 U.S. at 659–60; Weiss, 510 U.S. at 182-189 (Souter, J., concurring); Arthrex, 594 U.S. at 12–14. These post-Nixon developments in Appointments Clause jurisprudence, and the Supreme Court's corresponding emphasis on structural principles behind that provision, lessen the force of the disputed dictum. iii. The out-of-circuit cases cited by the Special Counsel are equally unpersuasive. Special Counsel Smith cites two out-of-circuit appellate cases in support of his position that Nixon's statutory-authority statement is binding [ECF No. 374 pp. 9–10]. Both decisions determined that Nixon was dispositive on the statutory-authority question. Respectfully, the Court disagrees. Like Nixon, neither engaged with the text of the statutes at issue. The Court starts with In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), which concerned a challenge to Independent Counsel Lawrence Walsh's prosecution of the Iran-Contra scandal. As authority for creation of the "Office of Independent Counsel: Iran/Contra," the Attorney General cited 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C. § 301. 829 F.2d at 55; see 28 C.F.R. § 601. Despite expressly stating that "these provisions”—that is, 28 U.S.C. §§ 509, 510, 515, and 5 U.S.C. § 301 "do not explicitly authorize the Attorney General to create an Office of Independent 65

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 66 of 93 Counsel virtually free of ongoing oversight,” the circuit court nevertheless "read them as accommodating the delegation at issue here.” Id. at 55 (emphasis added). And then the court stated, in an attached footnote, that Nixon "presupposed the validity of a regulation appointing the Special Prosecutor.” Id. at 55 n.30 (emphasis added). No analysis of the statutes was provided. 52 More recently, in In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019), the same circuit court addressed a challenge to the authority of Special Counsel Robert Mueller, a contemporary special counsel serving in a role akin to that of Special Counsel Smith. The court characterized the abbreviated statutory-authority remarks from Nixon and In re Sealed Case as binding, viewing them as necessary “antecedents" to those cases' holdings. Id. at 1053-54. And then, relying on those remarks, the court found no further analysis of the statutes to be necessary. Id. at 1054 ("Because binding precedent establishes that Congress has 'by law' vested authority in the Attorney General to appoint the Special Counsel as an inferior officer, this court has no need to go further to identify the specific sources of this authority."). As the foregoing discussion demonstrates, the decisions in In re Sealed Case and In re Grand Jury Investigation relied on "presuppositions” and “antecedents” to determine that Nixon- which itself did not engage with the applicable statutory text- -was dispositive and foreclosed any statutory challenge. But as explained above, the Supreme Court has cautioned that "presuppositions” and “antecedents" of this sort "are not binding in future cases that directly raise the questions." Verdugo-Urquidez, 494 U.S. at 272. Unlike Nixon, this case does “directly raise" 52 There may be other reasons to doubt the persuasive force of In re Sealed Case's holding. See Calabresi & Lawson, supra at 125-27 (arguing that the appellant in that case, Lt. Col. Oliver North, focused on the preemptive effect of the Independent Counsel Act, without raising a frontal challenge to the Attorney General's appointment authority under the relied-upon statutes). 66 66

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 67 of 93 the statutory-authority question. And because neither of the out-of-circuit cases considered this question in a meaningful way, the Court does not find them persuasive here. In sum, the prefatory, passing remark in Nixon about 28 U.S.C. §§ 509, 510, 515, 533, does not stand as binding precedent for a point that was not raised, argued, disputed, or analyzed in that case, even if possibly assumed. See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 557 (2001) (Scalia, J., dissenting) (collecting cases); Webster, 266 U.S. at 511. Nor would such a treatment accord with the tailored manner in which the Supreme Court has defined and described its own Appointments Clause holdings in reference to the questions actually before it in those decisions. 53 V. Principal versus Inferior Officer Designation This brings the Court to its final point on the Appointments Clause challenge, prior to addressing remedy. Up to this juncture, the Court has proceeded under the premise, advanced by Special Counsel Smith, that he is an "inferior Officer," not a principal officer requiring Presidential nomination and Senatorial consent [ECF No. 405 pp. 6–12]. Defendants and the Meese amici contest this assertion, and it is a point worthy of consideration given the virtually unchecked power given to Special Counsel Smith under the Special Counsel Regulations. Ultimately, however, after examining the broad language in Supreme Court cases on the subject—and seeing a mixed picture, 53 Freytag, 501 U.S. at 890 (“The appointment authority of the 'Courts of Law' was not before this Court in Buckley. Instead, we were concerned with whether the appointment of Federal Elections Commissioners by Congress was constitutional under the Appointments Clause."); Weiss, 510 U.S. at 173 (distinguishing prior cases that "simply do not speak to the issue" before the Court); Edmond, 520 U.S. at 665–66 (holding that the implied principal-officer designation in Freytag "does not control our decision here" where the question was squarely presented). The Supreme Court made this very point in a recently decided case, albeit not in the Appointments Clause context. See Campos-Chaves v. Garland, 144 S. Ct. 1637, 1651 (2024) (explaining that a prior opinion's statement on the meaning of a statutory provision was dicta because that point "was not at issue," and the Court "did not reach out to decide today's question in that case"). 67

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 68 of 93 even if a compelling one in favor of a principal designation—the Court elects, with reservations, to reject the principal-officer submission and to leave the matter for review by higher courts. A. Arguments of Parties The arguments on the Motion, developed further during argument, are as follows. Special Counsel Smith contends that he is an inferior officer because he is "subject to supervision and oversight by other officers appointed by the President with Senate consent" [ECF No. 405 p. 6]. He cites to Morrison and Edmond for this proposition, stressing the following factors: (1) he is subject to removal by a higher Executive branch official for good cause, as was the case for the now-defunct independent counsel; (2) he is empowered to perform “limited duties" within a "limited" jurisdiction that is temporary and expires when his charge is over; (3) he “reports to and is supervised by the Attorney General” based on the terms of the Special Counsel Regulations; and (4) when all else fails, the Attorney General can remove the extant regulation and create at-will removal by amending or eliminating the regulation, or amending the Appointment Order itself [ECF No. 405 pp. 6–8]. Defendants and the Meese amici take the principal-officer view, urging that Special Counsel Smith wields the same authority as a United States Attorney per the Regulations, without a functional superior supervising or directing him, and without the important tool of at-will removal [ECF No. 326 p. 9 ("The authority he attempts to employ as Special Counsel far exceeds the power exercisable by a non-superior officer, authority that Congress has not cloaked him with."); ECF No. 647 p. 7 (adopting Meese principal-officer argument); ECF No. 611 p. 3 (“At bottom, former President Trump and amici argue the appointment of Special Counsel Jack Smith was unconstitutional insofar as Smith is a “principal officer," whose appointment must come from 88 68

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 69 of 93 the President alone with the advice and consent of the Senate."); ECF No. 364-1 pp. 20-22 (citing Calabresi & Lawson, supra at 128–134); ECF No. 647 pp. 25–32]. B. Legal Standards The Supreme Court has "not purport[ed] to set forth a definitive test" for distinguishing between principal and inferior officers, although the relevant cases, principally Morrison and Edmond, provide informative markers. Edmond, 520 U.S. at 661; Morrison, 487 U.S. at 671. In Morrison v. Olson, 487 U.S. 654 (1988), the Court considered the status of the now- defunct independent counsel under the former Independent Counsel Act. The Court was careful "not [to] attempt to decide exactly where the line falls between the two types of officers," but it enumerated the following four factors in route to “clearly” determining that the independent counsel fell on the inferior side of that line: (1) she was "subject to removal by a higher Executive Branch official," even though she was not "subordinate” to the Attorney General given her “independent discretion"; (2) she was “empowered by the Act to perform only certain, limited duties,” which did not include formulation of policy; (3) her office was “limited in jurisdiction” as determined by the judicial division; and (4) her office was “limited in tenure” insofar as she was "appointed essentially to accomplish a single task." Id. at 671-672. Justice Scalia criticized this view in dissent, arguing that the independent counsel was not "subordinate to another officer" and was removable only for good cause. Id. at 723 (Scalia, J., dissenting). Almost ten years later in Edmond v. United States, 520 U.S. 651 (1997), the Supreme Court fleshed out the principal versus inferior officer inquiry in a case involving judges of the Coast Guard Court of Criminal Appeals. The bulk of the majority's analysis is contained in the passage quoted below, although further important considerations-removability at will and power to render final decisions-feature in the decision too: 69 69

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 70 of 93 Generally speaking, the term 'inferior officer' connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior” officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate. Id. at 662–63. Continuing forward, the decision stressed that “[t]he power to remove officers. . . is a powerful tool for control," noting the parties' concession that the judicial officer at issue was removable without cause. Id. at 664 (citing Bowsher v. Synar, 478 U.S. 714, 727 (1986), and Myers v. United States, 272 U.S. 52 (1926)). And then, the Supreme Court commented on the degree to which an officer's decisions can be “reverse[d]" or countermanded by a higher entity or officer, ultimately concluding that the judges at issue remained inferior, because their decisions still were reviewed by a higher court, and because they lacked "power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers." Id. at 665. From these two decisions, courts have distilled three key factors in evaluating the inferior- principal question: (1) whether an officer is subject to substantial supervision and direction of a principal officer; (2) whether an officer is removable without cause perhaps the weightiest factor; and (3) whether an officer's decisions are subject to reversal by a supervisor in the executive branch. See Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C. Cir. 2012); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613. Again, however, the Supreme Court “has been careful not to create a rigid test” for discerning between the two types 70 70

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 71 of 93 of officers, instead employing what appears to be a "case-by-case analysis." Arthrex, 594 U.S. at 47 (Thomas, J., dissenting).54 C. Discussion Against this backdrop, the Court examines whether Special Counsel Smith is a principal or inferior officer under the operative regulatory framework and available Supreme Court standards.55 i. Factual Development As a preliminary matter, the parties agree that the Court should evaluate the principal versus inferior question, and indeed the entire Appointments Clause dispute, as a matter of law in accordance with the powers and authority delineated in the operative Special Counsel Regulations and applicable statutes [ECF No. 619 p. 1; ECF No. 620 pp. 8–12; see ECF No. 617 pp. 7–13]. The Court expresses some hesitation in this regard and lacks a detailed understanding of the actual extent and mechanics of supervision and control over Special Counsel Smith." Nevertheless, 56 54 Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) (“Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison's nebulous approach survived our opinion in Edmond. Edmond is also consistent with the Constitution's original meaning and therefore should guide our view of the principal-inferior distinction."); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Court's "prerogative of overruling its own decisions"). Defendants have not argued for the overruling of Morrison in this court, although the matter was raised at argument by the Landmark Legal amici [ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison)]. 55 The Court notes that neither party raises a direct challenge to the validity of the Special Counsel Regulations, which have remained in effect without change since their promulgation in 1999. 56 Cf. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 610-612 (appearing to express a similar lack of clarity on degree of Attorney General's countermanding authority and extent to which Department's policies shaped special counsel's actions). 71

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 72 of 93 neither party pressed for an evidentiary hearing on the Appointments Clause issue; the Special Counsel appears to have taken the questionable position that such inquiries intrude upon privileged Department deliberations; and the Court generally agrees that judicial treatment of Appointments Clause challenges has tracked the level of supervision and direction by reference to statutes and/or regulations only. 57 The Court thus proceeds accordingly, referencing the regulatory framework in effect at the time of the subject Appointment Order and in force today. Nixon, 418 U.S. at 695 ("So long as this regulation is extant it has the force of law.") (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954)); see Serv. v. Dulles, 354 U.S. 363, 372 (1957). ii. The Special Counsel Regulations impose almost no supervision or direction over the Special Counsel and give him broad power to render final decisions on behalf of the United States. The Special Counsel Regulations give to the special counsel an exceedingly broad charge to "exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States attorney," 28 C.F.R. § 600.6—and then impose virtually no mechanism for supervision or control by the Attorney General. Several key features inform this view, tracking the regulations on the subjects of consultation, supervision, and countermanding (with removal to follow later): First, a special counsel is under no regulatory obligation to consult with the Attorney General "about the conduct of his or her duties and responsibilities.” 28 C.F.R. § 600.6. Quite the 57 What is more, during the hearing, and specifically during questioning about the Special Counsel's degree of direction and supervision vis-à-vis the Attorney General, counsel for the Special Counsel refused to answer the Court's questions regarding whether the Attorney General had played any actual role in seeking or approving the indictment in this case [ECF No. 647 pp. 147–151]. In doing so, counsel appeared to invoke a deliberative process privilege or other "standard Justice Department [policy]," although none of the Court's questions solicited the substance of any internal deliberations [ECF No. 647 pp. 147–151]. Ultimately, counsel for the Special Counsel appeared to acknowledge some degree of actual oversight consistent with the Regulations, but again resisted any further representation [ECF No. 647 p. 148]. 72

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 73 of 93 opposite, it is up to the special counsel to determine whether to "inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities." Id. Second, a special counsel must "comply with the rules, regulations, procedures, and practices and policies of the Department,” and he shall "consult with appropriate offices within the Department for guidance with respect to [those] established practices.” 28 C.F.R. § 600.7(a). But nothing in that general policy-consultation directive a directive that applies only to consultation with "appropriate offices within the Department" about general Department-wide policies― appears to limit a special counsel's specific decision-making in conducting his investigation and prosecution. Third, still on the subject of consultation, the Regulations give full discretion to the special counsel whether to "consult directly with the Attorney General" even when the special counsel "conclude[s] that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate.” Id. § 600.7(a). So even in those difficult circumstances, the special counsel is the one to decide "whether to consult directly with the Attorney General," again leaving no mandatory consultation in the regulations themselves. Id. Fourth, turning to mechanisms for "notification" between the special counsel and the Attorney General, the Regulations require the special counsel to “notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports." Id. § 600.8. But nothing in that provision actually requires the special counsel to do anything other than to “notify" the Attorney General of certain developments. See Justice Manual 1-13.000 (providing non-exhaustive list of “major developments,” but 73

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 74 of 93 explaining that Urgent Reports impose only a “reporting,” “notice requirement” that “should not interrupt, alter, or delay the normal conduct and pursuit of any matter or case"). And nothing in that provision provides the Attorney General with any authority to actually countermand, direct, or supervise those significant decisions. Fifth, and finally, the Regulations expressly remove day-to-day supervision and provide almost no countermanding authority for the Attorney General. Edmond, 520 U.S. at 665 (focusing on judges' power to "render a final decision on behalf of the United States unless permitted to do so by other Executive officers"). The pertinent regulation in this area is the “conduct and accountability" section in 28 C.F.R. § 600.7(b), quoted in full below: The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3). Id. § 600.7(b). This provision, reduced to its essence, leaves the Attorney General a very slim route to countermand a decision by the special counsel, but only when the decision is "so inappropriate or unwarranted under established Departmental policies"; only after the Attorney General has given—as a mandatory matter—"great weight to the views of the Special Counsel"; and subject to a strict congressional notification requirement that mandates the Attorney General notify Congress of his "countermanding" decision at the conclusion of the investigation. Id. § 600.7(b); id. § 600.9(a)(3) (requiring Attorney General to describe and explain to Congress "instances" in which he concluded "that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be 74

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 75 of 93 pursued"). It is hard to see how this amounts to any meaningful direction or supervision. And it certainly does not mean that the Special Counsel lacks the power to render final decisions on behalf of the United States. Edmond, 520 U.S. at 652. In sum, this framework does not lend itself to a finding that Special Counsel Smith's "work is directed and supervised at some level" by the Attorney General-unless the “at some level" qualifier in Edmond is read in an exceedingly broad way. 520 U.S. at 663. iii. The limitations on the Attorney General's power to remove the Special Counsel support principal status under Edmond but maybe not under Morrison. The Court now turns to the Attorney General's power to remove Special Counsel Smith. "The power to remove officers at will and without cause is a powerful tool for control.” Edmond, 520 U.S. at 663. This element features prominently in Edmond, which relied heavily on at-will removal in finding inferior-officer status, but it also appears in Morrison, where the Supreme Court classified an independent counsel as an inferior officer even without at-will removal. Morrison, 487 U.S. at 671, 691–92 (referring to 28 U.S.C. § 596(a)(1), and concluding that the Act's "good cause" removal provision did not “impermissibly burden[] the President's power to control or supervise the independent counsel"). The particular removal provision in the Special Counsel Regulations reads as follows: The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal. 75

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 76 of 93 28 C.F.R. § 600.7(d). “Good cause” is a far-reaching term that is difficult to define. See Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613. What is clear, however, is that the Regulations do not afford the Attorney General “at will” removal power. 58 So what to make about the removal limitations in this case? On this point, the Court agrees with the United States District Court in Concord Management that the Special Counsel Regulations afford “more substantial protection against removal, and thus risk rendering him a principal officer," for the reasons stated in that decision and also referenced above. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 613-14 (citing cases). The Court need not expound on the analysis further except to underscore the Supreme Court's strong emphasis on at-will removal as a "powerful tool for control." Edmond, 520 U.S. at 664 (citing Bowsher, 478 U.S. at 727; Myers, 272 U.S. 52 (1926)). But of course, Morrison deemed the independent counsel an inferior officer despite a good-cause removal restriction-albeit in the context of a multi-factored approach that did not purport to delineate the “line” between principal and inferior officers. 487 U.S. at 671. And so, while it seems the absence of at-will removal is a key feature that—when combined with the absence of any meaningful supervision or countermanding authority—likely could transform Special Counsel Smith into a principal officer, the Court holds off on that view to allow whatever evaluation of this topic may be conducted by higher courts. iv. The possibility of a future rescission of the Special Counsel Regulations to create at-will removal does not change the Appointments Clause inquiry under current law. There is one final issue to discuss as relates to removal. It concerns the Special Counsel's fall-back position that none of the removal limitations in the Regulations pose an impediment to inferior-officer status, because the Attorney General can rescind or amend the Regulations at will 58 United States Attorneys are removable at will. 28 U.S.C. § 541(c). 76

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 77 of 93 (and without notice-and-comment), or can amend or revoke the Appointment Order. In a nutshell, the submission is as follows: evaluate the constitutional status of the Special Counsel's position in accordance with the extant regulatory framework, as a matter of law, but if the removal issue gets too sticky, customize that framework and consider the matter under a hypothetical future scenario where the regulation as it stands today (with its removal restrictions) does not exist [see ECF No. 405 pp. 11–12; ECF No. 647 pp. 151-52]. In other words, rely on the Regulations for some things, but discard or amend them at least partially should they cast into doubt the Special Counsel's inferior-officer status. This regulatory cherry-picking seems questionable as a means to resolve the inferior- principal Appointments Clause question, although the Court admits of uncertainty in this regard, and some courts have accepted the revocability piece as “crucial” in permitting an inferior-officer designation in similar contexts. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 615 (quoting In re Sealed Case, 829 F.2d at 56)). Of course, regulations can be amended subject to ordinary legal principles and any applicable restraints. But regulations have the force of law so long as they remain operative, which they are here. Nixon, 418 U.S. at 695 (“So long as this regulation is extant it has the force of law.") (citing Accardi, 347 U.S. at 265); see Dulles, 354 U.S. at 372 (describing Accardi as supporting notion that “regulations validly prescribed by a government administrator are binding upon him as well as the citizen even when the administrative action under review is discretionary in nature"). The question, then, is not whether regulations can be rescinded or amended; they can be. Rather, the question is whether Special Counsel Smith is a principal or inferior officer under the Appointments Clause. And that inquiry, it seems to this Court, must operate on the basis of extant law (a point on which the Special Counsel otherwise agrees)—not on some possible future material change to the removal limitations that 77

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 78 of 93 has not happened (and that frankly has not happened since the Regulations came into existence in 1999). If the matter were otherwise, the practical result becomes one of “regulatory shielding” almost, in a figurative sense; an officer without authority to act as a principal officer exercises a principal-officer role, but no means exist to judicially test that constitutional noncompliance because the reviewing court-despite finding principal status in the present tense—must suspend reality and reject the challenge on the basis of something other than the operative regulations. Such slipperiness would not be permitted if the officer were acting pursuant to statute; the court would review the extant law in a fixed manner, as is normally the case in Appointments Clause challenges with statutory law, not through shifting regulations or appointment orders untied to statutory authority. All of this simply underscores the need for Congress to enact “Law” in conformity with the Appointments Clause. Art. II, § 2, cl. 2. V. The Special Counsel's defined jurisdiction and tenure present a mixed and candidly unhelpful picture. The final component of the Court's inferior-officer analysis concerns Special Counsel Smith's jurisdiction and tenure. While Edmond did not stress these features, the Morrison court considered them in reaching its inferior-officer conclusion. Morrison, 487 U.S. at 672 (finding the Independent Counsel's office was “limited in jurisdiction” and “limited in tenure”). What they yield here is muddled and likely not dispositive. Special Counsel Smith's jurisdiction is described in a factual statement in the Appointment Order. 59 His jurisdiction is thus “limited" in the manner described by the Attorney General—as 59 Order No. 5559-2022 (“The Special Counsel is further authorized to conduct the ongoing investigation referenced and described in the United States' Response to Motion for Judicial Oversight and Additional Relief, Donald J. Trump v. United States, No. 9:22-CV-81294-AMC (S.D. Fla. Aug. 30, 2022) (ECF No. 48 at 5-13), as well as any matters that arose or may arise directly from this investigation or that are within the scope of 28 C.F.R. § 600.4."). 28 C.F.R. § 600.4(a) (adding authority to investigate and prosecute perjury, obstruction of justice, destruction 78

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 79 of 93 compared, for example, to a United States Attorney with jurisdiction to investigate any violation of federal criminal law throughout a designated federal district. But the Special Counsel's powers within his jurisdiction are exceedingly broad, indeed as broad as those possessed by a United States Attorney. See Robert H. Jackson, U.S. Att'y Gen., Address at the Second Annual Conference of United States Attorneys: The Federal Prosecutor 2 (Apr. 1, 1940) (referencing the might and discretion of prosecutors and their ability to "strike at citizens, not with mere individual strength, but with all the force of government itself”). And in some degree, the Special Counsel's powers are arguably broader than a traditional United States Attorney, as he is permitted to exercise his investigatory powers across multiple districts within the same investigation. So is he really exercising “limited” jurisdiction? And what is the “unlimited” jurisdictional benchmark to which his work ought to be compared? The answers are hazy. In any event, an officer's scope of work, even if limited, is not dispositive of the jurisdictional inquiry. As Justice Scalia said of the independent counsel in Morrison: As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of “lesser" functionaries. Morrison, 487, U.S. at 718 (Scalia, J., dissenting). of evidence, and intimidation of witnesses, along with authority to conduct appeals out of matters "investigated and/or prosecuted"). As noted supra, the Appointment Order also authorizes Special Counsel Smith to investigate and prosecute federal crimes arising from an unrelated electoral matter. Order No. 5559-2022. That prosecution is the subject of a separate proceeding in the U.S. District Court for the District of Columbia. 12 79

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 80 of 93 As to tenure, while it is true that Special Counsel Smith's position will end “[a]t the conclusion" of his "work," see 28 C.F.R. § 600.8(c), whenever that happens, that circumstance does not equate to a “limited tenure” in a meaningful sense. Nor is it clear what the “unlimited tenure" benchmark is, or how to measure it in real terms. What is known, however, is that the Special Counsel has been operating since November 2022; he has established a very significant operation in terms of staffing and resources; his direct expenditures exceeded $12.8 million as of close to a year ago (September 2023); and nothing in the Regulations, the Appointment Order, or the record more generally provides a concrete sunset provision for the cessation of his work. Bringing these factors together jurisdiction and tenure—the Court attempts to surmise the following: (1) the Special Counsel's jurisdiction is “limited” if “limited jurisdiction” means something less than the general jurisdiction exercised by a United States Attorney to prosecute any federal crime in one district (but see unlimited geographical reach in Appointment Order), and (2) the Special Counsel's tenure is “limited” if “limited in tenure" requires an open-ended appointment, perhaps with a fixed number of years. 28 U.S.C. § 541 (United States Attorneys serving four-term terms). The disposition of these factors is unclear, but they remain in the amalgam of considerations in Supreme Court caselaw. *** For the above reasons, the Court sees compelling reasons to reach a principal-officer designation. But because the answer under current Supreme Court precedent is not self-evident, and because this Court need not rely on this ground to dispose of the Appointments Clause challenge in the Motion, the Court elects to leave the matter for future review. Of course, however, 80 60

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 81 of 93 should it be determined that Special Counsel Smith is a principal officer, his appointment would violate the Appointments Clause without question. Art. II. § 2, cl. 2.60 VI. Remedy for Appointments Clause Violation The Court turns lastly to the remedial question: what to do about the absence of “Law” authorizing Special Counsel Smith's appointment? Defendants seek dismissal of the Superseding Indictment, arguing that “Jack Smith lacks the authority to prosecute this action,” and that "any actions [thus] taken by Smith are ultra vires" [ECF No. 326 pp. 1, 9, 13; see ECF No. 414 p. 10; see ECF No. 364-1 (Meese amici)]. Special Counsel Smith opposes Defendants' request on the merits but fails to propose any alternative form of relief or to respond on the substance of the remedial question [see ECF No. 374; ECF No. 432 p. 9 n.5 (“Because the Special Counsel is an officer authorized to carry out the prosecution in this case, the Court has no reason to consider 60 The Landmark Legal amici argue that Special Counsel Smith is merely an “employee” not subject to the Appointments Clause [ECF No. 410-2]. This position is based primarily on the view that the Special Counsel's position is not sufficiently “continuous" to warrant treatment as an officer [ECF No. 410-2 pp. 11–15]. Neither party advances this contention, and the Court disagrees with it. By any measure, Special Counsel Smith is "exercis[ing] significant authority pursuant to the laws of the United States." Buckley, 424 U.S. at 126. This is clear from the operative regulations, 28 C.F.R. § 600.6, which empower him to act with the full scope and power of a United States Attorney within his jurisdiction. Although the Supreme Court's decision in Lucia does emphasize continuity as a factor distinguishing officers from employees, it does so in the context of a comparison to “occasional” and “temporary duties," and it does not purport to establish bright lines on the degree of continuity. 585 U.S. at 245 (comparing continuing and permanent offices as distinct from temporary and episodic duties). Moreover, Lucia supports the continued vitality of the Buckley test, which no one disputes is satisfied by Special Counsel Smith. For these reasons, although Special Counsel Smith is not “permanent” in the forever sense because his jurisdiction will conclude at whatever unspecified time it concludes, his role clearly is not the sort of episodic, transient position that would make someone an employee under Germaine, 99 U.S. at 511-512 (holding that civil surgeons who were hired to perform exams intermittently were employees only). The Court notes that neither the Regulations nor the Appointment Order sets a time limit on Special Counsel Smith's appointment, which is approaching two years in duration. And United States Attorneys serve four-year terms, 28 U.S.C. § 541(b), which are continuing even if not permanent. 81

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 82 of 93 whether the Special Counsel action's to date are ‘salvageable' under the De Factor [sic] Officer doctrine.")].61 Because Special Counsel Smith's exercise of prosecutorial power has not been authorized by law, the Court sees no way forward aside from dismissal of the Superseding Indictment. And the Special Counsel does not propose an alternative course. "[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer. . .' is entitled to relief." Lucia, 585 U.S. at 251 (2018) (quoting Ryder, 515 U.S. at 182-83). In such cases, which necessarily involve a "Government actor's exercise of power that the actor did not lawfully possess," the proper remedy is invalidation of the ultra vires action. Collins v. Yellen, 594 U.S. 220, 258 (2021) (collecting cases); see id. at 276-83 (Gorsuch, J., concurring). Invalidation "follows directly from the government actor's lack of authority to take the challenged action in the first place. That is, winning the merits of the constitutional challenge is enough." Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 241 (5th 61 Insofar as the Special Counsel may argue that additional briefing on remedy is warranted, the Court explains the record and notes the Special Counsel's full and fair opportunity to brief the matter of remedy. This action presents a challenging array of issues, almost all of which are resolutely contested; the parties require no prompting before objecting, opposing, and otherwise engaging in "spirited” exchanges. With respect to the instant Motion itself, both the Special Counsel and Defendant Trump submitted briefing; amicus briefs were received; and a lengthy hearing occurred. Yet startlingly, the Special Counsel submitted nothing on the topic of the proper remedy for the Appointments Clause issue, despite challenging dismissal as a remedy in the Appropriations Clause context [ECF No. 374 pp. 22-23 (disputing dismissal and referencing alternative sources of funding); see ECF No. 671 (response to supplemental authority agreeing to supplemental briefing “on the immunity issue" and nothing more)]. Instead, counsel for the Special Counsel remarked at the hearing, in response to a question about remedy in the Appropriations Clause context, that: "to the extent that the Court is seriously entertaining the notion that there is a constitutional or funding problem, I actually think it would behoove the Court and the parties to have some additional briefing” [ECF No. 648 p. 44]. This last-minute reference to conditional supplemental briefing at the hearing-only if the Court disagreed with the Special Counsel on the merits—in no way signals a lack of a full and fair opportunity given to all parties to brief their positions. Nor does it establish any prejudice from an alleged deprivation of a chance to respond on the plainly important issue of the proper remedy for the Appointments Clause matter. 82 82

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 83 of 93 Cir. 2022) (Jones, J., concurring). 62 In light of these remedial principles—and because the Court concludes that Special Counsel Smith's appointment violates the Appointments Clause-the actions of Special Counsel Smith in connection with this proceeding must be set aside. The Supreme Court's decision in Lucia v. SEC, 585 U.S. 237 (2018), serves as the best comparator for remedy purposes. In Lucia, the petitioner-a business owner who had been sanctioned by an administrative law judge for securities violations-raised a timely challenge to the validity of the judge's appointment. Id. at 243-44. The Supreme Court sided with the petitioner, concluding that the judge's appointment was constitutionally defective under the Appointments Clause. Id. at 251. Because the judge “heard and decided [the petitioner's] case without the kind of appointment the Clause requires,” the Court ruled that “the 'appropriate' remedy for an adjudication tainted with an appointments violation is a new ‘hearing before a properly appointed' official." Id. at 251 (quoting Ryder, 515 U.S. at 183, 188). In other words, Lucia undid the unlawful action by granting petitioner a new hearing before a constitutionally appointed officer. Here, as in Lucia, the appropriate remedy is invalidation of the officer's ultra vires acts. Since November 2022, Special Counsel Smith has been exercising "power that [he] did not lawfully possess." Collins, 594 U.S. at 258. All actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding 62 Collins distinguished these situations from other separation-of-powers cases involving laws containing improper removal provisions. 594 U.S. at 257–59. In those cases, the proper remedy is often to sever the violative removal provision from the rest of the law. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 232-38 (2020); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508–10 (2010). Full-scale invalidation is not necessary to rectify the harm in such cases because “the unlawfulness of the removal provision does not strip" a lawfully appointed government actor "of the power to undertake the responsibilities of his office." Collins, 594 U.S. at 258 n.23. That is not the case here, where the matter goes to the core of appointment. 83

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 84 of 93 currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because Special Counsel Smith "cannot wield executive power except as Article II provides," his “[a]ttempts to do so are void" and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance this very argument: "any actions taken by Smith are ultra vires and the Superseding Indictment must be dismissed" [ECF No. 326 p. 9]. And the Court sees no alternative course to cure the unconstitutional problem. It bears noting that Special Counsel Smith's work cannot be salvaged by the de facto officer doctrine, which, in some circumstances, "confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." Ryder, 518 U.S. at 180 (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). For two reasons, that doctrine does not apply here.63 First, the doctrine is designed to address "technical defects in title to office." Ryder, 518 U.S. at 180 (internal quotations marks omitted); see Nguyen v. United States, 539 U.S. 69, 77–78 (2003). Here, the problem is no mere "technical defect”—instead, the problem is the absence of a statutorily created office to fill in the first place. As the Supreme Court has made clear, “there can be no officer, either de jure or de facto, if there is no office to fill." Norton, 118 U.S. at 441. Second, the de facto officer doctrine has not been applied in cases, like this one, where a litigant raises a timely constitutional challenge to an officer's appointment. See Ryder, 539 U.S. at 182-83 ("We think that one who makes a 63 The de facto officer doctrine was covered noncommittally in the Landmark Legal amici's brief [ECF No. 410-2 pp. 23-24]. The Special Counsel offered a non-response in a footnote: "Because the Special Counsel is an officer authorized to carry out the prosecution in this case, the Court has no reason to consider whether the Special Counsel's actions to date are 'salvageable' under the De Factor [stet] Officer doctrine” [ECF No. 432 p. 9 n.5]. 84

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 85 of 93 timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred."); Lucia, 585 U.S. at 251. “Any other rule would create a disincentive to raise Appointments Clause challenges” in the face of questionable appointments. Ryder, 539 U.S. at 183; see Lucia, 585 U.S. at 251 n.5. Because Defendants timely raised their constitutional challenge to Special Counsel Smith's appointment, and because there can be no valid officer without a valid office, the Court sees no basis to resort to the de facto officer doctrine.64 APPROPRIATIONS CLAUSE DISCUSSION The Court turns next to Defendants' Appropriations Clause challenge [ECF No. 326 pp. 9– 14].65 Since its inception, Special Counsel Smith's office has been funded by “a permanent 64 The Supreme Court's decision in Off. of United States Tr. v. John Q. Hammons Fall 2006, LLC, 144 S. Ct. 1588, 1595 (2024), is not to the contrary [See ECF No. 648 pp. 42–43]. That case involved how to remedy a “limited” Bankruptcy Clause problem flowing from a federal bankruptcy statute-not the constitutionality of an officer's appointment under the Appointments Clause. Id. (focusing on the "short lived and small" nature of the "constitutional problem"). More fundamentally, that case does not detract from the principle that “the nature of the violation determines the scope of the remedy." Id. (quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971)). Here, for all of the reasons stated, the only appropriate remedy for the preserved constitutional challenge under the Appointments Clause-a challenge that implicates separation of powers—is invalidation of the proceeding. 65 Defendants have Article III standing to raise their Appropriations Clause challenge. The Supreme Court has recognized that standing exists in “cases in which individuals sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations.” Bond v. United States, 564 U.S. 211, 224 (2011); Collins, 594 U.S. at 245. Violations of the Appropriations Clause are one such example. See United States v. McIntosh, 833 F.3d 1163, 1173–74 (9th Cir. 2016) (holding that appellants "ha[d] standing to invoke separation-of-powers provisions of the Constitution" there, the Appropriations Clause—“to challenge their criminal prosecutions" prior to conviction); see United States v. Stone, 394 F. Supp. 3d 1, 19 n.13 (D.D.C. 2019). To the extent that Special Counsel Smith challenged Defendants' standing to raise this argument in his Opposition or attempted to cast the challenge as a non-constitutional claim, he declined to stand by those contentions at the hearing [ECF No. 648 pp. 46–48]. 85

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 86 of 93 indefinite appropriation . . . established within the Department of Justice 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 other law." 101 Stat. 1329. But as discussed above, supra pp. 22-52, Special Counsel Smith was not lawfully “appointed pursuant to . . . other law." 101 Stat. 1329. This means that Special Counsel Smith's office—since November 2022―has been drawing funds from the Treasury without statutory authorization, in violation of the Appropriations Clause. I. Background Legal Principles The Appropriations Clause dictates that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. Art. I, § 9, cl. 7. This "straightforward and explicit command . . . means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress." Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (citation omitted). To pass constitutional muster, an appropriation "need only identify a source of public funds and authorize the expenditure of those funds for designated purposes.” CFPB v. Cmty. Fin. Servs. Ass'n of Am., Ltd., 601 U.S. 416, 426 (2024) ("CFPB").6 66 Defendants do not challenge the Indefinite Appropriation itself—only its applicability to Special Counsel Smith [ECF No. 326 pp. 12–14]. The Court expresses some uncertainty, however, about the legality of the purely "indefinite" nature of the appropriation, which by all accounts is uncapped and includes no monetary threshold or other formulaic limitation. It is not clear whether that feature, on its own, presents a constitutional defect under the Appropriations Clause. See CFPB, 601 U.S. at 425-41 (emphasizing repeatedly the “capped" nature of the CFPB's funding scheme in determining it complied with the Appropriations Clause); but see id. at 444 (Kagan, J., concurring) (identifying certain statutes that do not "designate specific sums of money"). All that said, the limitless nature of the appropriation, standing alone, was not squarely raised in this proceeding. 86

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 87 of 93 The Appropriations Clause plays a critical role in our constitutional scheme of separated powers. It is Congress not the executive or judicial branches-that controls government spending. "Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury." Id. at 425. As a historical matter, “Congress's 'power over the purse' has been its 'most complete and effectual weapon' to ensure that the other branches do not exceed or abuse their authority." CFPB, 601 U.S. at 448 (Alito, J., concurring) (quoting The Federalist No. 58, p. 359 (C. Rossiter ed. 1961) (J. Madison)). See also Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 225-232 (5th Cir. 2022) (Jones, J., concurring) (discussing in detail the historical origins, and separation-of-powers underpinnings of the Appropriations Clause). II. Analysis By its terms, the Indefinite Appropriation is available only to “independent counsel[s] appointed pursuant to the provisions of 28 U.S.C. § 591 et seq. or other law." 101 Stat. 1329. The Independent Counsel Act expired in 1999, meaning that Special Counsel Smith must identify "other law" authorizing his appointment to access the Indefinite Appropriation. Both sides agree that “other law,” for present purposes, is the collection of statutes cited in the Appointment Order [ECF No. 648 pp. 5, 31]. For all of the reasons the Court found no statutory authority for the appointment, supra pp. 22-52, Special Counsel Smith's investigation has unlawfully drawn funds from the Indefinite Appropriation. 67 67 Nor do the Special Counsel Regulations serve as “other law" for purposes of access to the Indefinite Appropriation [ECF No. 374 p. 18 (arguing that 28 C.F.R. § 600 has “the force of law" for purposes of the Indefinite Appropriation); but see ECF No. 648 p. 31 (agreeing that “other law” in the Independent Appropriation refers to statutory law only)]. 87

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 88 of 93 Having found no "other law," the Court need not determine whether Special Counsel Smith is the type of "independent counsel" referenced in the Indefinite Appropriation [ECF No. 326 pp. 13-14 (arguing Smith is not sufficiently “independent" to access funds)].68 Nevertheless, the Court notes the inherent tension in the Special Counsel's position on this issue. In the Appointments Clause context-specifically, in arguing that he is an inferior (as opposed to principal) officer-Special Counsel Smith emphasizes the Attorney General's supervision and control over his work [ECF No. 374 p. 7 n.1; ECF No. 405]. Yet in the Appropriations Clause context, he asserts that he is sufficiently independent to draw funds from the Indefinite Appropriation [ECF No. 374 pp. 17-18]. In other words, Special Counsel Smith contends he is independent enough to access the funds, but not so independent to constitute a principal officer. Perhaps he threads that needle. But at least one source suggests otherwise. In 2004, the Government Accountability Office (GAO) approved of Special Counsel Patrick Fitzgerald's use of funds from the Indefinite Appropriation. Special Counsel and Permanent Indefinite Appropriation, B-302582, 2004 WL 2213560 (Sept. 30, 2024). The GAO's determination was grounded in Fitzgerald's “express exclusion . . . from the application of 28 C.F.R. Part 600 [i.e., the Special Counsel Regulations]," which allowed him to operate “independent of the supervision or control of any officer of the Department.” Id. at 3.69 Contrast Fitzgerald with Special Counsel 68 Were the Court required to conduct that analysis, it is unclear precisely how “independent” an "“independent counsel" must be to draw from the Indefinite Appropriation. The Court accepts, however, that independent counsels need not be strictly equivalent to the “Independent Counsels" authorized by the now-defunct EGA. See Stone, 394 F. Supp. 3d at 20–22. 69 Then-Acting Attorney General James Comey directed Special Counsel Fitzgerald to exercise his authority "independent of the supervision or control of any officer of the Department." Letter from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Dec. 30, 2003). In a later letter, Comey clarified that Fitzgerald's position as "Special Counsel” “should not be misunderstood to suggest that [his] position and authorities are defined and limited by 28 CFR Part 600." Letter from Acting Attorney General James B. Comey to Patrick J. Fitzgerald (Feb. 6, 2004). 88 88

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 89 of 93 Smith, who—by the express terms of the Appointment Order and by his own admission—is subject to the Special Counsel Regulations, and subject to the supervision and control of the Attorney General. As mentioned above, the Court need not decide the "independence" issue given the absence of statutory law authorizing the appointment. But at the very least, the “independence" question raises doubts. III. Remedy This leaves remedy for the Appropriations Clause violation. Defendants argue that dismissal is the only way to cure the funding violation [ECF No. 326 p. 12; ECF No. 414 p. 9]. Special Counsel Smith opposes dismissal, asserting without any specificity or even willingness to engage in factfinding [see ECF No. 620 p. 3]—that “the Department could readily have funded the Special Counsel from other appropriations that were available” [ECF No. 374 p. 25]. At the hearing, Special Counsel Smith represented, "at a relatively high level of generality," that DOJ "has appropriated, at least in the 2023 appropriation cycle, over a billion dollars," which it is prepared to use to fund the Special Counsel's office [ECF No. 648 pp. 41-42]. The Court need not reach the question of remedy here, having found the Appointments Clause violation to warrant dismissal. Supra pp. 81–85. But as discussed below, there is good reason to believe that the Appropriation Clause violation serves as a separate, independent basis to dismiss. "Across remedial contexts, the nature of the violation determines the scope of the remedy." John Q. Hammons Fall 2006, LLC, 144 S. Ct. at 1594 (internal quotation marks omitted). As far as the Court can tell, there is no Supreme Court or Eleventh Circuit precedent that speaks directly to this point. Given the absence of binding precedent on the issue, the Court finds instructive 89 69

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 90 of 93 Judge Edith Jones's concurrence in Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218 (5th Cir. 2022) (Jones, J., concurring), a case involving a civil enforcement action brought by the CFPB. Id. at 220-42.70 All American concerned whether the CFPB's structure violated the Constitution's separation of powers. Id. at 220. In a per curiam opinion, the court vacated and remanded the district court's order in light of the Supreme Court's decision in Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197 (2020). Id. Judge Jones concurred, writing separately to make the case that the CFPB's funding mechanism violated the Appropriations Clause. Id. at 220-42 (Jones, J., concurring). Likening an unlawfully funded enforcement action to unauthorized government action, Judge Jones advanced that dismissal was the proper remedy: Just as a government actor cannot exercise power that the actor does not lawfully possess, so, too, a government actor cannot exercise even its lawful authority using money the actor cannot lawfully spend. Indeed, a constitutionally proper appropriation is as much a precondition to every exercise of executive authority by an administrative agency as a constitutionally proper appointment or delegation of authority. Id. at 242. Surveying cases in which a government actor took action without constitutional authority, Judge Jones concluded that the appropriate remedial course was to "disregard the government action.” Id. “[B]ecause the CFPB funds the instant prosecution using unconstitutional self-funding, I would dismiss the lawsuit." Id. There is a strong, intuitive appeal to applying Judge Jones's logic here. The Special Counsel's office has spent tens of millions of dollars since November 2022, all drawn unconstitutionally from the Indefinite Appropriation. That funding has served as “the very lifeblood that empower[ed] it to act.” Id. at 241. Perhaps, as suggested generally at the hearing, 70 Cmty. Fin. Servs. Ass'n of Am., Ltd. v. Consumer Fin. Prot. Bureau, 51 F.4th 616, 642-43 (5th Cir. 2022), is a related case (overruled on other grounds in CFPB), that provides helpful analysis on remedies in the Appropriations Clause context. 90 90

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 91 of 93 DOJ could reallocate funds to finance the continued operation of Special Counsel Smith's office [ECF No. 648 pp. 41-42]. This would require further development of the record. But even if this were prospectively possible, what to make of the prior action? For more than 18 months, Special Counsel Smith's investigation and prosecution has been financed by substantial funds drawn from the Treasury without statutory authorization, and to try to rewrite history at this point seems near impossible. The Court has difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation, but the answers are not entirely self-evident, and the caselaw is not well developed. For that reason, and given the disposition of this Order on Appointments Clause grounds, the Court leaves the matter of funding remedy for any applicable future review.71 CONCLUSION Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel's Smith's prosecution of this action breaches two structural cornerstones of our constitutional scheme-the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law. The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not. In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel's 71 As in the Appointments Clause context, the de facto officer doctrine does not apply here. See supra pp. 84-85. 91

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 92 of 93 strained statutory readings. Nor does his appeal to inconsistent "historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle subjugating the executive branch to the legislatures power of the purse." All American, 33 F.4th at 221 (Jones, J., concurring). In the end, it seems the Executive's growing comfort in appointing “regulatory" special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases. Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country's history. Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care. The Court thus returns to where it started. The Appointments Clause is “among the significant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So too is the Appropriations Clause, which carefully separates Congressional control of the "purse" from Executive control of the "sword." The Federalist No. 78 (Alexander Hamilton). The consequences of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate 92 92

Case 9:23-cr-80101-AMC Document 672 Entered on FLSD Docket 07/15/2024 Page 93 of 93 and unconstitutional practices get their first footing... by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). *** For the reasons set forth above, it is ORDERED AND ADJUDGED as follows: 1. Defendants' Motion to Dismiss Superseding Indictment Based on Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order [ECF No. 326]. 2. The Superseding Indictment [ECF No. 85] is DISMISSED. 3. This Order is confined to this proceeding. The Court decides no other legal rights or claims. 4. This Order shall not affect or weaken any of the protections for classified information imposed in this case or any protective orders pertaining to classified information. 5. The Clerk is directed to CLOSE this case. Any scheduled hearings are CANCELLED. Any pending motions are DENIED AS MOOT, and any pending deadlines are TERMINATED. DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 15th day of July 2024. CC: counsel of record 93 93 AILEEN M. CANNON UNITED STATES DISTRICT JUDGE