Clarence Thomas asked critical question regarding Jack Smith’s legitimacy in prosecuting Trump

Supreme Court Justice Clarence Thomas dropped a potential bomb on Special Counsel Jack Smith on Thursday.

As BizPac Review reported, the high court was hearing arguments regarding Donald Trump’s claim that the actions he took while president are immune from prosecution.

But Thomas suggested there may be an even bigger issue at play: Did Smith and the Office of Special Counsel have the authority to bring charges against Trump in the first place?

During a nearly three-hour Supreme Court session, Thomas asked Trump attorney John Sauer, “Did you, in this litigation, challenge the appointment of Special Counsel?”

“Sauer replied that Trump’s attorneys had not raised that concern ‘directly’ in the current Supreme Court case — in which justices are considering Trump’s arguments that presidential immunity precludes the prosecution of charges that the former president illegally sought to overturn the 2020 election,” Fox News Digital reports. “Sauer told Thomas that, ‘we totally agree with the analysis provided by Attorney General Meese [III] and Attorney General Mukasey.'”

“It points to a very important issue here because one of [the special counsel’s] arguments is, of course, that we should have this presumption of regularity,” Sauer said. “That runs into the reality that we have here an extraordinary prosecutorial power being exercised by someone who was never nominated by the president or confirmed by the Senate at any time.”

“So we agree with that position,” the attorney added. “We hadn’t raised it yet in this case when this case went up on appeal.”

In March, Meese and Mukasey presented a 42-page amicus brief to the Supreme Court asking whether “Jack Smith has lawful authority to undertake the ‘criminal prosecution'” of Trump.

“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,” Meese and Mukasey wrote. “He does not.”

“Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices,” they explained. “But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. 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.”

Fox News Digital summarizes their argument:

The crux of the problem, according to Meese, is that Smith was never confirmed by the Senate as a U.S. attorney, and no other statute allows the U.S. attorney general to name merely anyone as special counsel. Smith was acting U.S. attorney for a federal district in Tennessee in 2017, but he was never nominated to the position. He resigned from the private sector after then-President Trump nominated a different 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 prosecutorial decisions, independent of the White House or the attorney general, he is far more powerful than any government officer who has not been confirmed by the Senate. 

It’s a point Sauer and Trump’s other attorneys argued before a Florida federal court in Smith’s classified documents case against the former president.

“In a March court filing in Florida, Trump’s attorneys claimed that the special counsel’s office argues in federal court that Smith is wholly independent of the White House and Garland — contradicting Trump’s arguments that the federal charges against him are politically motivated,” Fox News Digital reports. “But at the same time, the special counsel’s attorneys insist that Smith is subordinate to the attorney general, and therefore not subject to Senate confirmation under the Appointments Clause of the U.S. Constitution.”

Meese and Mukasey noted in their brief, “There are times when the appointment of a Special Counsel is appropriate, and the Constitution provides for such appointments by allowing the use of existing U.S. Attorneys who can be made Special Counsels.”

“Any number of United States Attorneys have served as a Special Counsel,” they wrote. “Those investigations were lawful.”

“But the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel,” the former attorney general stated. “Smith’s appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump.”

Melissa Fine


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