During a recent session at the Supreme Court, Justice Clarence Thomas raised a crucial question regarding the charges against former President Donald Trump by Special Counsel Jack Smith. The central issue being debated is whether Smith and the Office of Special Counsel have the legal authority to bring charges against Trump.
Trump's attorney, John Sauer, clarified that they had not directly challenged the appointment of the special counsel in the current Supreme Court case. However, they align with the analysis provided by former Attorneys General Meese and Mukasey, who question Smith's authority to prosecute Trump.
In a 42-page amicus brief, Meese and Mukasey argued that Smith, as a special counsel, lacks the lawful authority to undertake criminal prosecution due to not being confirmed by the Senate to any position. They emphasized that federal prosecutions should only be conducted by properly appointed federal officers to properly created federal offices.
The crux of the issue lies in Smith's appointment, as he was never confirmed by the Senate as a U.S. attorney, raising concerns about the extent of his prosecutorial power. Trump's attorneys have objected to the legitimacy of Smith's appointment in the charges against Trump.
In response to Trump's claims of political motivation behind the charges, the special counsel's office asserted that Smith is independent but also subordinate to the attorney general, hence not requiring Senate confirmation.
Meese and Mukasey highlighted that special counsel investigations are necessary but stressed that the appointment of someone not confirmed by the Senate, like Smith, is unlawful.
Smith, a private citizen, was appointed as special counsel by Attorney General Merrick Garland in 2022, unlike previous special counsels who were confirmed by the Senate to various positions before their appointments.
The Florida court is yet to rule on Trump's motion to dismiss the case due to claims of Smith's improper appointment. The Supreme Court is expected to rule on Trump's immunity arguments before the term ends in June.
