Supreme Court Justice Clarence Thomas on Thursday raised questions that go to the heart of Special Counsel Jack Smith’s charges against former President Donald Trump.
The high court is considering Trump’s argument that he cannot be prosecuted for actions he committed while president, but another question is whether Smith and the special counsel’s office have the authority to bring charges in the first place. That’s what it means.
“Did you object to the appointment of a special counsel in this case?” Thomas asked Trump’s lawyer, John Sauer, during a nearly three-hour Supreme Court session Thursday.
Sauer responded that Trump’s lawyers have not “directly” raised that concern in the current Supreme Court case. The justices are considering Trump’s argument that presidential immunity precludes prosecution of charges that the former president illegally tried to overturn the 2020 election.
Mr. Sauer told Mr. Thomas that he “completely agrees with the analysis provided by Attorney General Meese.” [III] and Attorney General Mukasey. ”
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“This points to a very important issue, because [the special counsel’s] The argument, of course, is that this presumption of regularity is necessary. That runs up against the reality that special prosecutorial powers are being exercised here by someone who has never been nominated by the president or confirmed by the Senate. Therefore, we agree with that position. “When this case was appealed, we hadn’t filed it yet,” Sauer said.
Donald Trump, Judge Clarence Thomas, Special Counsel Jack Smith (Getty Images)
A 42-page court brief filed with the High Court in March states: Mies and Mukasey “Whether Jack Smith has the legal authority to bring ‘criminal prosecution’ against President Trump,” he questioned. Mr. Mukasey and Mr. Meese, both former U.S. attorneys general, have said that Mr. Smith and the special counsel’s office do not have the authority to prosecute themselves, in part because Mr. Smith has not been confirmed by the Senate to any position. He said that it has not been done.
Meese and Mukasey argued that federal prosecutions “can only be brought by properly appointed federal employees in properly established federal offices.” “But neither Smith nor the special counsel position for which he is allegedly acting meet those standards. And that’s a serious problem for the rule of law — no matter what one thinks. Former President Trump, or Smith in the underlying case, disagrees. Act of the day.”
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The crux of the issue, Meese said, is that Smith has not been confirmed by the Senate as a U.S. attorney, and there is no other law that allows the U.S. attorney general to appoint someone to serve as special counsel. Smith served as assistant U.S. attorney for the District of Tennessee in 2017, but he was never appointed to the position. He resigned from the private sector after then-President Trump nominated another prosecutor to be U.S. attorney for the Middle District of Tennessee.
The Supreme Court heard Trump’s claims about presidential immunity earlier this week. (Javin Botsford/The Washington Post via Getty Images)
Meese and Mukasey said the special counsel wields broad authority to convene grand juries and make prosecutorial decisions independent of the White House and attorney general, making them more powerful than government officials who are not confirmed by the Senate. claimed to be much more powerful.
Mr. Sauer and Mr. Trump’s other lawyers have challenged the legitimacy of Mr. Smith’s appointment in a classified documents case filed by Mr. Smith in federal court in Florida against Mr. Trump.
In a March court filing in Florida, Trump’s lawyers argued that the special counsel’s office had argued in federal court that Smith was completely independent from the White House and Garland. But this contradicts Trump’s claims that the federal charges against him are politically motivated. At the same time, however, lawyers for the special counsel argue that because Smith is subordinate to the attorney general, he is not subject to Senate confirmation under the U.S. Constitution’s Appointments Clause.
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“The Chief Justice’s assurances to the court that Mr. Smith is independent and will not prosecute Republican presidential candidates at the direction of the Biden administration, and that Mr. Smith is not independent and will instead be thoroughly supervised and monitored. There are significant tensions with the Secretary’s assurances here that the Court should be concerned about such sweeping powers being used to change the trajectory of the ongoing presidential election. We have a responsibility to explain to President Biden and Attorney General Garland that this is not the case,” Trump’s lawyers said in the filing.
The U.S. Supreme Court appears concerned about how the president’s immunity for the crimes accused by Special Counsel Jack Smith will affect the future functioning of the executive branch. (Courtesy of William J. Hennessy Jr.)
In response to President Trump’s claims in the Florida case, the Office of the Special Counsel argued that the attorney general “has the statutory authority to appoint a special counsel” and that the Supreme Court ” He even claimed to have supported that authority “in similar circumstances.” In a 1974 case in which he challenged prosecutors investigating the late President Richard Nixon.
Meese and Mukasey wrote in their brief that the Nixon case was “about the relationship between the president and the Department of Justice as an institution, and not about the relationship between the president and specific officials purportedly appointed by the Justice Department.” ” and therefore it is unrelated.
They also said that special counsel investigations are necessary and often legal, but that “the Attorney General does not have the title of “special prosecutor” to appoint someone who has not been confirmed by the Senate to act as a federal prosecutor. cannot be appointed.” Therefore, Mr. Smith’s appointment is illegal, as are all actions derived from it, including the prosecution of former President Trump. ”
Smith was a private citizen when Attorney General Merrick Garland appointed him special counsel to investigate Trump in 2022.
U.S. Special Counsel Jack Smith indicted Trump in Florida on charges of mishandling classified documents and in Washington, D.C., on charges of election interference. (Al Drago/Bloomberg via Getty Images)
Other recent special counsels – including John Durham’s Trump-Russia investigation. David Weiss of the Hunter Biden investigation. Robert Hur, who investigated Mr. Biden’s mishandling of classified documents, had all been confirmed by the Senate to various positions before being appointed special counsel.
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A Florida court has not yet ruled on Mr. Trump’s motion to dismiss the classified documents lawsuit, alleging that Mr. Smith was improperly appointed.
The Supreme Court is expected to rule on President Trump’s immunity claim by the end of its term in June.
