Justice Clarence Thomas Raised Critical Question About the Legitimacy of Special Counsel’s Prosecution of Donald Trump

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

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

“Did you, in this litigation, challenge the appointment of special counsel?” On Thursday, Thomas asked John Sauer, Trump’s attorney, during an almost three-hour Supreme Court session.

Sauer replied that Trump’s attorney hasn’t raised the concern “directly” in the current Supreme Court case. Justices are considering Trump’s arguments that presidential immunity deters the prosecution of charges that the former president sought to overturn the 2020 election illegally.

Sauer told Thomas, “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,” said Sauer.

In the 42-page amicus brief presented in March to the high court, Mukasey and Meese questioned whether “Jack Smith has lawful authority to undertake the ‘criminal prosecution'” of Trump, Meese, and Mukasey — both former United States attorneys general — said the Office of Special Counsel itself and Smith have no authority to prosecute, partially because the Senate didn’t ever confirm him to any position.

Federal prosecutions “can be taken only by persons properly appointed as federal officers to properly created federal offices,” argued Meese and Mukasey. But neither Smith nor the position of special counsel in 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.”

According to Meese, the core of the problem is that the Senate didn’t ever confirm Smith as a U.S. attorney, and no other statute allows the U.S. attorney general to name just anyone as special counsel. Smith served as U.S. attorney for a Tennessee federal district in 2017 but was never nominated for the position. He resigned from the private sector after then-President Donald Trump nominated a different prosecutor for attorney general for Tennessee’s middle district.

Mukasey and Meese argued because the special counsel exercises wide-reaching authority to convene grand juries and make decisions for prosecution, independent of the attorney general or White House, he is much more powerful than any government officer whom the Senate hasn’t confirmed.

Trump’s other attorneys and Sauer objected to the legitimacy of Smith’s appointment to prosecute the charges against the former president in the classified documents case, which Smith additionally brought before a federal court.

In a filing in March in a Florida court, attorneys for Trump claimed the special counsel’s office argues in federal court Smith is entirely independent of Garland and the White House — contradicting arguments from Trump that the federal charges he’s facing are politically motivated. However, simultaneously, attorneys for the special counsel insist Smith is subordinate to the attorney general and, therefore, not subject to confirmation by the Senate under the U.S. Constitution’s Appointments Clause.

“There is significant tension between the Office’s assurances to that court that Smith is independent and not prosecuting the Republican nominee for President at the direction of the Biden administration, and the Office’s assurance here that Smith is not independent and is instead so thoroughly supervised and accountable to President Biden and Attorney General that this Court should not be concerned about such tremendous power being exercised to alter the trajectory of the ongoing presidential election,” wrote Trump’s attorneys in the filing.

The office of the special counsel responded to Trump’s claims in the Florida case and argued the attorney general “has the statutory authority to appoint a Special Prosecutor.” The Supreme Court upheld that authority “in closely analogous circumstances nearly 50 years ago” in a case that challenged the prosecutor who investigated the late President Richard Nixon in 1974.

Mukasey and Meese: Special counsel must be confirmed by the Senate

Mukasey and Meese wrote in the brief that the case against Nixon was irrelevant because it “concerned the relationship between the President and DOJ as an institution, not between the President and any specific actor purportedly appointed by the DOJ.”

The pair also stated that special counsel investigations are required and often lawful; however, “the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title ‘Special Counsel.’ Smith’s appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump.”

When Attorney General Merrick Garland appointed Smith to special counsel to investigate former President Trump in 2022, he was a private citizen.

Additional recent special counsels — including John Durham’s Russia-Trump probe; Robert Hur, who investigated Biden’s classified documents mishandling; and David Weiss from the Hunter Biden investigation — were all confirmed by the Senate to several positions before being named as special counsels.

The Florida court hasn’t yet ruled on Trump’s motion to dismiss the case involving the classified documents because of claims Smith was appointed improperly.

The U.S. Supreme Court is expected to rule on the former president’s arguments for immunity before its term ends in June.