During oral arguments last week on presidential immunity claims made by former President Donald Trump’s legal team, Supreme Court Justice Clarence Thomas raised concerns about the legality of special counsel Jack Smith’s appointment. According to The Epoch Times, Thomas questioned Trump’s attorney, John Sauer, about whether they had challenged Smith’s authority to bring charges against Trump.
Sauer responded that they had not “directly” challenged Smith’s authority in the current case before the Supreme Court. However, he pointed out that this is an “important issue” because of the extraordinary prosecutorial power that Smith wields, despite never being nominated by the president or confirmed by the Senate. Sauer’s response refers to an amicus brief submitted to the Supreme Court on March 19 by former Attorneys General Edwin Meese and Michael Mukasey, who questioned Smith’s legal authority.
“Thomas has asked former President Donald Trump’s lawyers about whether they challenged special counsel Jack Smith’s authority to bring charges against the president,” The Epoch Times reported on Sunday.
“During the hearing, Justice Thomas asked John Sauer, the attorney who represented President Trump in court, ‘Did you, in this litigation, challenge the appointment of special counsel?’ Mr. Smith was appointed to the case by Attorney General Merrick Garland,” the outlet continued.
In the amicus brief, the former attorneys general argued that Smith does not have the proper authority to conduct the underlying prosecution because he was not properly appointed as a federal officer. They contended that Smith wields significant power but answers to no one, suggesting that his appointment was unlawful and that any actions resulting from it, including his prosecution of Trump, are also unlawful.
Attorney General Merrick Garland cited several statutes when appointing Smith, but the former AGs argued that none of them explicitly authorize the appointment of a special counsel with the extraordinary criminal law enforcement power granted to Smith.
In the larger context, political analyst Ronald Brownstein, writing for The Atlantic, suggested that Trump’s legal team had a successful day during the Supreme Court hearing. He noted that five of the Republican-appointed justices signaled that they might protect Trump from trial before the 2024 election, effectively delaying any federal trial until after the November election.
