OPINION: This article may contain commentary which reflects the author's opinion.
The U.S. Supreme Court late on Friday 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.
His 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 totally 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.
On Wednesday, 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.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” they write.
While the primary focus of these briefs is to argue against the Supreme Court granting Smith’s petition to transfer the case to the high court, their reasoning would require lower federal courts to dismiss Smith’s entire portfolio of prosecutions, including all pending charges against Trump.
During the presidency of Ronald Reagan, Meese served as Attorney General. Congress’s approval of independent counsel played a significant role during this time.
Alina Habba, an attorney representing former President Donald Trump’s Save America PAC, is slamming Special Counsel Jack Smith for moving quickly to have the U.S. Supreme Court consider the federal criminal case involving the 2020 election and Trump’s immunity defense.
The indictment accuses Trump of participating in criminal conspiracies to alter the outcome of the 2020 presidential election. Trump has sought to dismiss the charges by claiming that he has presidential immunity.
Smith has raised the matter with the nation’s top court, stating that it should be addressed before the D.C. Circuit’s decision and referencing the upcoming March 4 trial date for Trump. With the Supreme Court’s approval, Trump is now required to reply by December 20. After that, they will determine whether or not to accept the case.
“There is some sort of real sense of urgency,” Habba said in an interview. “The only urgency that I can see is that there is an election in November 2024, and they can’t beat him.”
Habba said “everyone can see” what Smith is doing and said it “is election interference at its finest.”
“They can’t beat him in the ballots, so they’re going to have to either, you know, lie, cheat, steal, or the newest, lawfare, put him in jail, and tie him up,” she told Fox Business Network’s Larry Kudlow.
Kudlow suggested that since Trump would have to sit in trial every day for the case, they don’t want him on the campaign trail.
Habba agreed and said, “It’s playing against them.”
“He’s getting a lot of voters that he normally wouldn’t get because they’re seeing this and he is the victim of, all of a sudden, they’ve made him a victim of complete and utter election interference and lawfare,” she said.
Habba said she has faith in the Supreme Court because they “really take their office seriously, and we’ve seen that time and time again with that, especially recently.”
