Smith was ‘never nominated by the president or confirmed by the Senate at any time,’ Trump’s lawyer pointed out.
U.S. Supreme Court Justice Clarence 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.
On April 25, the U.S. Supreme Court heard oral arguments in a case about President Trump’s being immune from prosecution for official acts carried out during his presidency. 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.
Mr. Sauer said that Trump attorneys have not raised such concerns “directly” in the current case at the Supreme Court. However, “it points to a very important issue here, because one of [the prosecution’s] arguments is, of course, that we should have this presumption of regularity,” Mr. Sauer stated.
“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,” he said.
“We hadn’t raised it yet in this case when this case went up on appeal.”
Mr. Sauer said he agrees with the “analysis provided by Attorney General [Edwin] Meese and Attorney General [Michael B.] Mukasey,” referring to the amicus brief the two former attorneys general submitted to the Supreme Court on March 19.
In it, the two attorneys general noted that irrespective of what one thinks about the immunity issue, Mr. Smith “does not have authority to conduct the underlying prosecution.”
“Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. Smith wields tremendous power, and effectively answers to no one,” they wrote.
“However, neither Smith nor the position of special counsel under which he purportedly acts meets those criteria. And that is a serious problem for the rule of law, whatever one may think of the conduct at issue in Smith’s prosecution.”
