Supreme Court of Justice Clarence Thomas raised a question Thursday that goes to the heart of special prosecutor Jack Smith’s charges against former President Donald Trump.
The high court was considering Trump’s argument that he is immune from prosecution for actions he took while president, but another question is whether Smith and the Office of Special Counsel have the authority to bring charges.
“Have you, in this litigation, challenged the appointment of a special counsel?” Thomas asked Trump lawyer John Sauer on Thursday during a nearly three-hour Supreme Court session.
Sauer responded that Trump’s lawyers did not raise this concern “directly” in the current Supreme Court case — in which the justices are considering Trump’s arguments that presidential immunity prevents the prosecution of charges that the former president illegally tried to dismiss. the 2020 elections.
Sauer 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 [the special counsel’s] arguments is, of course, that we should have this presumption of regularity. This flies in the face of the reality that we have here extraordinary prosecutorial power exercised by someone who was never nominated by the president or confirmed by the Senate at any point. Therefore, we agree with this position. We had not yet raised the issue in this case when it was appealed,” Sauer said.
In a 42-page amicus brief filed with the high court in March, Meese and Mukasey questioned whether “Jack Smith has the legal authority to undertake the ‘criminal prosecution'” of Trump. Mukasey and Meese — both former U.S. attorneys general — said Smith and the Office of Special Counsel itself lack the authority to prosecute, in part because he was never confirmed by the Senate for any position.
Federal prosecutions “may only be brought by persons duly appointed as federal officers to duly created federal offices,” Meese and Mukasey argued. “But neither Smith nor the special counsel position under which he supposedly serves meet these criteria. He wields tremendous power, effectively accountable to no one, by design. And that is a serious problem for the rule of law – no matter what one might think. former President Trump or the conduct of January 6, 2021, which Smith disputes in the underlying case.”
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The crux of the problem, according to Meese, is that Smith was never confirmed by the Senate as U.S. Attorney, and no other statute allows the U.S. Attorney General to appoint just anyone as special counsel. Smith was acting U.S. attorney for a federal district in Tennessee in 2017 but was never appointed to the position. He resigned from the private sector after then-President Trump appointed another prosecutor as U.S. Attorney for the Middle District of Tennessee.
Meese and Mukasey argued that because the special counsel exercises broad authority to convene grand juries and make charging decisions independently of the White House or the attorney general, he is far more powerful than any government official who has not been confirmed by the Senate.
Sauer and Trump’s other lawyers objected to the legitimacy of Smith’s nomination in the charges against Trump in the classified documents case, also brought by Smith, before a Florida federal court.
In a lawsuit filed in March in Florida, Trump’s lawyers alleged that the special counsel’s office argues in federal court that Smith is completely independent of the White House and Garland – contradicting Trump’s arguments that the federal charges against him are politically motivated. . But at the same time, the special counsel’s lawyers insist that Smith reports to the attorney general and is therefore not subject to Senate confirmation under the Appointments Clause of the U.S. Constitution.
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“There is significant tension between the Office’s assurances to this court that Smith is independent and will not prosecute the Republican nominee for president at the direction of the Biden administration, and the Office’s assurance here that Smith is not independent and will instead Furthermore, is so carefully supervised and accountable to President Biden and Attorney General Garland that this Court should not be concerned about exercising such tremendous power to alter the trajectory of the ongoing presidential election,” Trump’s lawyers wrote. in the process.
The special counsel’s office, responding to Trump’s allegations in the Florida case, argued that the attorney general “has the legal authority to appoint a Special Counsel” and that the Supreme Court even upheld that authority “in closely analogous 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 report 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 allegedly appointed by the DOJ.”
The pair also said that special counsel investigations are necessary and often legal, but stated that “the Attorney General cannot appoint someone never confirmed by the Senate, as a deputy United States attorney under the title of ‘Special Counsel.’ Smith’s appointment was therefore unlawful, as were all actions arising from it, including the prosecution of former President Trump.”
Smith was a private citizen when Attorney General Merrick Garland named him special counsel to investigate Trump in 2022.
Other recent special advice – including John Durham’s Trump-Russia investigation; David Weiss, from the Hunter Biden investigation; It is Roberto Hurwho investigated Biden’s mishandling of classified documents — were all confirmed by the Senate to various positions before being named special counsels.
The Florida court has not yet ruled on Trump’s motion to dismiss the confidential documents case due to allegations that Smith was improperly appointed.
The Supreme Court is expected to rule on Trump’s immunity arguments before his term ends in June.
Original article source: Judge Thomas raised a crucial question about the legitimacy of the special counsel’s case against Trump
