During the oral arguments last week, Supreme Court Justice Clarence Thomas expressed concerns regarding the legality of special counsel Jack Smith’s appointment. These concerns were raised in relation to the lawyers’ claims of presidential immunity made on behalf of Donald Trump.
“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.
Sauer stated that Trump’s legal representatives have not explicitly raised such concerns in the ongoing Supreme Court case.. 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,” he 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,” he said. “We hadn’t raised it yet in this case when this case went up on appeal.”
Sauer went on to tell the associate justice that he agrees with the “analysis provided by Attorney General [Edwin] Meese and Attorney General [Michael B.] Mukasey.” The two ex-attorneys general pointed out that irrespective of anyone’s opinion on the immunity matter, Smith lacks the power to carry out the main 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,” the two AGs added.
The two former AGs argued none of them even “remotely authorized the appointment by the Attorney General of a private citizen or government employee to receive extraordinary criminal law enforcement power under the title of Special Counsel.” The appointment of a special counsel would be appropriate in certain cases, as highlighted by the two attorneys general, who also emphasized that the U.S. Constitution allows for such appointments.
But “the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title ‘special counsel,’” they added.
“Smith’s appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump,” they said.
