Justice Thomas raised crucial question about legitimacy of special counsel's prosecution of Trump

Supreme Court Justice Clarence Thomas raised a question Thursday that goes to the heart of Special Counsel Jack Smith's charges against former President Donald Trump.

The high court was considering Trump's argument that he is immune from prosecution for actions he took while president, but another issue is whether Smith and the Office of Special Counsel have the authority to bring charges at all.

"Did you, in this litigation, challenge the appointment of special counsel?" Thomas asked Trump attorney John Sauer on Thursday during a nearly three-hour session at the Supreme Court.

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.

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. 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. We hadn't raised it yet in this case when this case went up on appeal," Sauer said.

In a 42-page amicus brief presented to the high court in March, Meese and Mukasey questioned whether "Jack Smith has lawful authority to undertake the 'criminal prosecution'" of Trump. Mukasey and Meese — both former U. S. attorneys general — said Smith and the Office of Special Counsel itself have no authority to prosecute, in part because he was never confirmed by the Senate to any position.

Federal prosecutions, "can be taken only by persons properly appointed as federal officers to properly created federal offices," Meese and Mukasey argued. "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."

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.... (Read more)

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