During a recent Supreme Court hearing, Justice Clarence Thomas questioned the legitimacy of Special Counsel Jack Smith’s authority to prosecute former President Donald Trump. This inquiry reflects a broader legal challenge surrounding the powers of special counsels, particularly those not confirmed by the Senate.
The case at hand involves Trump’s assertion of presidential immunity against prosecutions for actions taken while in office. However, Justice Thomas directed attention beyond presidential immunity, probing whether Smith had the proper authority to bring charges in the first place.
During the proceedings, Trump’s attorney, John Sauer, acknowledged that their team had not directly challenged Smith’s appointment in this particular case. Yet, he supported the critique laid out by former U.S. Attorneys General Edwin Meese III and Michael Mukasey. In an amicus brief, Meese and Mukasey argued that Smith, who had significant prosecutorial powers and was acting independently of the usual executive oversight, should have been confirmed by the Senate due to the nature of his role.
The brief underscored the issue that Smith, having never been confirmed by the Senate for his role or any previous substantial federal prosecutorial position, lacked the traditional legitimacy required for such a powerful position. This absence of Senate confirmation, they contended, was a fundamental flaw in his authority to undertake the prosecution of Trump, particularly in such a politically sensitive context.
The Supreme Court’s engagement with this aspect of the legal arguments signifies the complexity of the issues surrounding special counsel appointments and their prosecutorial limits. The case’s outcome could have far-reaching implications for the structure and oversight of special counsels in the future, potentially influencing how political figures are held accountable after leaving office.