Supreme Court Justice Clarence Thomas on Thursday raised a question that goes to the heart of special counsel Jack Smith’s allegations against the former judge. President Donald Trump,
The high court was considering Trump’s argument that he has immunity from prosecution for actions he took while president, but another issue is whether Smith and the special counsel’s office have the authority to bring charges.
“Did you challenge the appointment of the special counsel in this case?” Thomas asked Trump attorney John Sawyer during a nearly three-hour session at the Supreme Court on Thursday.
Sawyer responded that Trump’s lawyers had not “directly” raised that concern in the current Supreme Court case — in which the justices are considering Trump’s arguments that presidential immunity prevents prosecution of charges against the former president. There was a demand to illegally overturn the 2020 election.
Sawyer told Thomas that, “We completely agree with the analysis provided by Attorney General Meese (III) and Attorney General Mukasey.”
“This points to a very important issue here because one of the (special counsel’s) arguments, of course, is that we should have this notion of regularity. It runs into the reality that we have an extraordinary There is a prosecutorial power that is being exercised by someone who has never been nominated by a president or confirmed by the Senate, so we agree with that position when this case is appealed,” Sawyer said. But we had not picked it up till then.”
Donald Trump, Justice Clarence Thomas, Special Counsel Jack Smith (Getty Images)
In a 42-page amicus brief submitted to the high court in March, Meese and Mukasey Questioned whether “Jack Smith has the legal authority to ‘criminally prosecute’ Trump”. Mukasey and Meese – both former U.S. Attorneys General – said Smith and the special counsel’s office had no authority to prosecute, partly because they had not been confirmed to either position by the Senate.
Meese and Mukasey argued, “Federal prosecutions may be conducted only by persons properly appointed as federal officers in properly created federal offices.” “But neither Smith nor the special counsel status under which he allegedly serves meets those criteria. He has tremendous power, which is effectively by design unaccountable to anyone. And “This is a serious problem for the rule of law – regardless of what one thinks of former President Trump or the conduct on January 6, 2021, which Smith challenges in the underlying case.”
The crux of the problem, according to Meese, is that Smith was never confirmed by the senate As a US attorney, no other statute allows the US Attorney General to designate just anyone as special counsel. Smith was the acting U.S. attorney for a federal district in Tennessee in 2017, but was never nominated for the position. She resigned from the private sector after then-President Trump nominated a different prosecutor to be the U.S. attorney for the Middle District of Tennessee.
The Supreme Court heard arguments from Trump about presidential immunity earlier this week. (Jabin Botsford/The Washington Post via Getty Images)
Meese and Mukasey argued that because the special counsel exercises broad authority to convene grand juries and make prosecutorial decisions, independent of the White House or the Attorney General, he is far more powerful than any government official. Has not been confirmed by the Senate.
Sawyer and other Trump lawyers objected to the legality of Smith’s appointment in the allegations against Trump in the classified documents case brought by Smith before a Florida federal court.
In a court filing in March in Florida, Trump’s lawyers claimed that the special counsel’s office argued in federal court that Smith is completely independent of the White House and Garland – contradicting Trump’s arguments that the federal charges against him The allegations are politically motivated. But at the same time, the special counsel’s lawyers insist that Smith is subordinate to the Attorney General, and therefore not subject to Senate confirmation under the Appointments Clause of the US Constitution.
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“There is a significant tension between the Office’s assurances to that court that Smith is independent, and is not prosecuting the Republican nominee for president at the direction of the Biden administration, and the Office’s assurances here that Smith is not independent.” Instead, they are fully monitored and held accountable to President Biden and Attorney General Garland for holding that this Court is being used to alter the trajectory of the ongoing presidential election,” Trump’s lawyers wrote in the filing. Don’t worry about overwhelming power.
The US Supreme Court appeared concerned about how presidential immunity for crimes alleged by special counsel Jack Smith would affect the future functioning of the executive branch. (Courtesy: William J. Hennessy Jr.)
Responding to 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 prosecutor” and that the Supreme Court had also upheld that authority “in similar circumstances nearly 50 years ago.” In a 1974 case that challenged the prosecutor investigating the late President Richard Nixon.
Meese and Mukasey wrote in their brief that the Nixon case was irrelevant because it “concerned the relationship between the President and the DOJ as an institution, not between the President and any specific actor appointed by the DOJ.”
The pair also said that special counsel investigations are necessary and often legitimate, but added that “the Attorney General cannot appoint someone who has not been confirmed by the Senate, combined under the title ‘Special Counsel’ As United States Attorney, Smith’s appointment was thus unlawful, as are all actions including the prosecution of former President Trump.”
When Smith was a private citizen Attorney General Merrick Garland Appointed him as special counsel to investigate Trump in 2022.
US special counsel Jack Smith has accused Trump of allegedly mishandling classified documents in Florida and election interference in Washington DC. (Al Drago/Bloomberg via Getty Images)
Other recent special consultations – including John Durham’s Trump-Russia investigation; David Weiss of the Hunter Biden investigation; And robert hoorwho investigated Biden’s misuse of classified documents – all were confirmed by the Senate to various positions before being named as special advisers.
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A Florida court has not yet ruled on Trump’s motion to dismiss the classified documents case over claims Smith was improperly appointed.
The Supreme Court is expected to rule on Trump’s immunity arguments before his term ends in June.
