(Luis Cornelio, Headline USA) Does Special Counsel Jack Smith lack the authority to bring criminal charges against former President Donald Trump? This pivotal question surfaced during a Supreme Court hearing on Thursday, initiated by Justice Clarence Thomas.
The Supreme Court met to hear the arguments presented by Trump’s legal team and the DOJ regarding whether the former president enjoys immunity from prosecution for actions performed in their official capacity as commanders-in-chief.
As reported by Fox News on Saturday, Thomas questioned Trump’s attorney John Sauer whether the former president disputed the legitimacy of Smith’s appointment as special counsel—a contention first raised by some legal scholars.
While Sauer acknowledged that the defense had not “directly” raised this issue in the current court proceedings, he pointed to its consideration in the “Southern District of Florida case,” specifically referring to the Mar-a-Lago documents battle.
“We totally agree with the analysis provided by Attorney General [Edwin] Meese [III] and Attorney General [Michael] Mukasey,” Sauser affirmed to Thomas, citing the legal framework proposed by the two former Republican AGs that could undermine Smith’s legal endeavors.
Sauser emphasized that the legal analysis “points a very important issue here because one of their arguments is … that we should have this presumption of regularity that runs into the reality that we have here an extraordinary prosecutorial power being exerted by someone who was never nominated by the president or confirmed by the Senate at any time.”
Thomas’s inquiries likely stemmed from the 42-page amicus brief filed by Meese and Mukasey, which suggested that Smith—who was appointed by Democratic Attorney General Merrick Garland—lacked the requisite authority to prosecute Trump, having never received Senate confirmation.
“Although this case raises a weighty issue of presidential immunity, it also necessarily raises a preliminary question, i.e., whether Jack Smith actually has authority to prosecute this case all. He does not,” the former Republican attorneys general wrote.
“Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria,” they added.
Meese and Mukasey underscored that neither Smith nor any of his associates had received Senate appointments, not even in past stings.
“He wields tremendous power, effectively answerable to no one, by design. And that is a serious problem for the rule of law—whatever one may think of former President Trump or the conduct on January 6, 2021, that Smith challenges in the underlying case,” they added.
Smith served as acting U.S. attorney for the Middle District of Tennessee from March 2017 to September 2017, following Trump’s request for the resignation of Smith’s superior, Donald Q. Cochran.
Fox News reported that after Trump’s selection of Cochran’s successor, Smith resigned from his acting role. Acting positions typically do not require Senate confirmation.
Garland appointed Smith to oversee the investigation into Trump concerning purportedly missing documents and the former president’s challenges to the results of the January 6 presidential election. Trump contends that the latter actions are protected by presidential immunity.
Trump has consistently criticized Smith, characterizing him as a cog in a broader scheme aimed at impeding his presidential ambitions.
