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An attorney for former President Donald Trump is celebrating after the U.S. Supreme Court denied Special Counsel Jack Smith’s motion to expedite the review of the question of whether or not former President Trump is immune from prosecution in the federal case involving interference with the 2020 presidential election.
During an interview on Fox Business, Habba spoke about the likelihood that Trump’s federal 2020 election trial may go beyond its currently planned start date of March 4 as a result of the high court’s decision.
Earlier this month, Smith requested that the Supreme Court swiftly decide whether the Republican presidential frontrunner, Trump, is immune from prosecution for crimes committed during his presidency.
This assertion has been pivotal to the defense strategy of Trump’s legal team. Following U.S. District Judge Tanya Chutkan’s rejection of arguments claiming immunity from the indictment, it sought a stay on proceedings. The appeal is currently pending, so the case’s proceedings have come to a halt.
“I’m really pleased with the Supreme Court, it really restored my faith in my profession, frankly,” Alina Habba told “Kudlow” guest host David Asman.
“The Supreme Court saw through this. There was no urgent application necessary by Jack Smith. He was trying to usurp the appellate division and go right up to the Supreme Court to have them hear issues of presidential immunity, which is an absolute immunity that presidents have for a very good reason,” Habba began.
“Frankly so they don’t have to have DAs and AGs come after them after their presidency in this political witch hunt, and the Supreme Court will today say that Jack Smith did not have reason to do so. He needed to stay the course, go through the normal procedures as everybody else, he had no urgency, and there was no dissent in the Supreme Court’s decisions. So, it was a very great day for team Trump, and we’ll keep pushing,” Habba added.
“Normal due process in America has its place, and we can’t try to rush due process when it suits them,” Habba said. “They have year-long investigations and brought all these cases, David, right before the election so that he’s not on the campaign trail, so he’s out there doing nothing to help his campaign.”
“Instead what they don’t realize, which I think the polls show is that the more you try and attack Trump, the more they try to tie him up in the witch hunts and court cases, they’re going to get stopped and they’re going to be seen by the Americans as an attempt to usurp the GOP and Republican Party,” Habba continued.
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Last week, attorneys for former Attorney General Ed Meese and two of the top constitutional scholars in the country filed a brief arguing that the U.S. Supreme Court must reject Smith’s petition against Trump because his appointment as special counsel is unconstitutional.
Their amicus brief contends that Smith’s representation of the United States in his petition for certiorari to the Supreme Court is invalid due to his lack of authority. This is because Congress has not established the position he holds, and his appointment is in violation of the Constitution’s “Appointments Clause.”
The filing alleges that U.S. Attorney General Merrick Garland made an improper appointment of Smith to a non-existent office, for which Garland lacks the necessary authority, Breitbart noted.
Meese, Steven Calabresi, the co-chairman of the Federalist Society, and Gary Lawson, a renowned constitutional law professor, contend that Congress alone has the authority to create federal positions like the one Smith is currently holding, and Congress has not used this power.
Although the Constitution establishes the positions of President and Vice President, Congress possesses exclusive authority to establish additional positions, as the Constitution stipulates that such positions must be “established by law.”
Congress had previously enacted legislation to grant authorization for a comparable role known as “independent counsel.” However, this statute lapsed in 1999.
The lawyers claim that Garland is unable to assign a subordinate to perform tasks that Congress has not approved. Only an individual with the title of “officer” possesses the requisite level of authority.
While establishing the Department of Justice, Congress granted it specific powers through legislation. However, it did not authorize any office with the same level of authority as a U.S. Attorney, which Garland has bestowed upon Smith.
The amicus brief further argues, “Even if one somehow thinks that existing statutes authorize the appointment of stand-alone special counsels with the full power of a U.S. Attorney, Smith was not properly appointed to such an ‘office.’” They contend that even if Congress authorized special counsels, anyone holding such authority would require presidential nomination and Senate confirmation.
Additionally, the brief contended that Smith’s authority is comparable to that of a U.S. attorney, as he is a “principal officer” according to the Appointments Clause of the Constitution.
This means that confirmation by a majority of the U.S. Senate is mandatory following his nomination by the president.
