During a recent hearing, U.S. Supreme Court Justice Clarence Thomas questioned former President Donald Trump’s lawyers about the authority of special counsel Jack Smith to bring charges against the president.
On April 25, the U.S. Supreme Court heard oral arguments regarding whether President Trump is immune from prosecution for official acts carried out during his presidency. Justice Thomas asked John Sauer, Trump’s attorney, “Did you, in this litigation, challenge the appointment of special counsel?” Smith was appointed to the case by Attorney General Merrick Garland.
Sauer replied that Trump’s attorneys have not directly raised such concerns in the current case. However, he emphasized the importance of the issue, stating, “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.”
Sauer referred to an amicus brief submitted to the Supreme Court on March 19 by former Attorneys General Edwin Meese and Michael B. Mukasey. In the brief, they argued that regardless of one’s stance on presidential immunity, Smith “does not have authority to conduct the underlying prosecution.”
Attorney General Garland appointed Smith as Special Counsel of the U.S. Department of Justice (DOJ) citing several statutes. However, according to Meese and Mukasey, none of these statutes authorized the appointment of a private citizen or government employee to receive extraordinary criminal law enforcement power as a Special Counsel.
The case in question involves Smith’s indictment of former President Trump, alleging an attempt to subvert the transfer of presidential power following the 2020 election. Trump is charged with four criminal counts. He had requested lower courts to grant him presidential immunity for actions undertaken while in office, but the request was denied.
In court, Sauer warned against a judgment that undermines presidential immunity, arguing that it would distort the president’s decision-making and leave every president vulnerable to potential extortion by political rivals.
The Supreme Court Justices seemed skeptical about Trump’s claims to absolute immunity for his actions as president. However, they also appeared open to the idea that presidents have some level of immunity.
The court may remand the case back to the Washington district court, instructing it to differentiate between official and private acts of a president, potentially delaying Trump’s trial and related proceedings.
This strategic delay could potentially benefit Trump as he seeks to postpone cases until after the elections.