Justice Thomas Raises Scrutiny On Special Counsel Jack Smith's Appointment In Trump Hearing

U.S. Supreme Court Justice Clarence Thomas has asked former President Donald Trump’s lawyers about whether they challenged special counsel Jack Smith’s authority to bring charges against the president.

On April 25, the U.S. Supreme Court heard oral arguments in a case about President Trump being immune from prosecution for official acts carried out during his presidency. During the hearing, Justice Thomas asked John Sauer, the attorney who represented Trump in court, “Did you, in this litigation, challenge the appointment of special counsel?” Mr. Smith was appointed to the case by Attorney General Merrick Garland.

Mr. Sauer said that Trump attorneys have not raised such concerns “directly” in the current case at the Supreme Court. However, “it points to a very important issue here, because one of [the prosecution’s] arguments is, of course, that we should have this presumption of regularity,” Sauer stated.

Mr. Sauer said he agrees with the “analysis provided by Attorney General [Edwin] Meese and Attorney General [Michael B.] Mukasey,” referring to the amicus brief the two former attorneys general submitted to the Supreme Court on March 19.

In it, the two attorneys general noted that irrespective of what one thinks about the immunity issue, Mr. Smith “does not have authority to conduct the underlying prosecution.”

Attorney General Garland appointed Mr. Smith as Special Counsel of the U.S. Department of Justice (DOJ) citing several statutes.

However, none of these statutes even “remotely authorized the appointment by the Attorney General of a private citizen or government employee to receive extraordinary criminal law enforcement power under the title of Special Counsel.”

The two attorneys general added there are times when the appointment of a special counsel would be appropriate and that the U.S. Constitution allows for such appointments.

However, “the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title ‘special counsel,’” they added.

“Smith’s appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump.”

The Case Against Trump

The U.S. Supreme Court is hearing President Trump’s immunity case as part of Mr. Smith’s indictment of the former president alleging an attempt to subvert the transfer of presidential power following the 2020 election. President Trump is charged with four criminal counts in the case.

President Trump had requested the lower courts to back his claims of presidential immunity as the actions were undertaken while he was serving as president.

After the lower courts refused to grant the request, the 45th president appealed to the U.S. Supreme Court, contending that his actions as president are covered by presidential immunity.

The Supreme Court agreed to consider the following question—“Whether and, if so, to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

In court, Mr. Sauer warned the justices against giving a judgment that undermines presidential immunity, noting that an American president would no longer be able to carry out his job properly if he was unsure whether his actions would trigger prosecution years after leaving office.

Moreover, a lack of presidential immunity will denote that every president becomes a potential candidate for extortion by political rivals while still in office, Mr. Sauer added.

The Supreme Court Justices appeared skeptical about President Trump’s claims that he has the right to absolute immunity for his actions as president. However, the justices also appeared to be open to accepting that presidents have some level of immunity.

The court could decide to remand the case back to the Washington district court, with instructions for differentiating between official and private acts of a president so that additional fact-finding proceedings can be done.

Such a move would delay the former president’s trial in Washington and potentially proceedings related to three other cases as well. This gives President Trump a strategic win as he attempts to hold off cases until after the elections.

On April 25, the U.S. Supreme Court heard oral arguments in a case about President Trump being immune from prosecution for official acts carried out during his presidency. During the hearing, Justice Thomas asked John Sauer, the attorney who represented Trump in court, “Did you, in this litigation, challenge the appointment of special counsel?” Mr. Smith was appointed to the case by Attorney General Merrick Garland.
Mr. Sauer said that Trump attorneys have not raised such concerns “directly” in the current case at the Supreme Court. However, “it points to a very important issue here, because one of [the prosecution’s] arguments is, of course, that we should have this presumption of regularity,” Sauer stated.

The issue was not raised in the trial court and therefore may not be raised at the appellate level of that case.

Smith continues on the case.

I do not see Meese show up on the Florida docket before docket #365 on 03/05/2024. It does not appear that his Amicus Brief of Dec 2023 was ever docketed in Florida. It appears to have been filed to the D.C. Circuit Court and there dispatched with on 6 Feb 2024.

The D.C. Circuit Court of Appeals Opinion of 6 Feb 2024 is here:

https://cases.justia.com/federal/appellate-courts/cadc/23-3228/23-3228-2024-02-06.pdf?ts=1707233771

Footnote 16 at page 57.

¹⁶ Amici former Attorney General Edwin Meese III and others argue that the appointment of Special Counsel Smith is invalid because (1) no statute authorizes the position Smith occupies and (2) the Special Counsel is a principal officer who must be nominated by the President and confirmed by the Senate. See U.S. CONST. art. II, § 2, cl. 2 (Appointments Clause). On appeal from a collateral order, we generally lack jurisdiction to consider issues that do not independently satisfy the collateral order doctrine unless we can exercise pendent jurisdiction over the issue. See Abney, 431 U.S. at 663; Azima v. RAK Inv. Auth., 926 F.3d 870, 874 (D.C. Cir. 2019). Because the Appointments Clause issue was neither presented to nor decided by the district court, there is no order on the issue that could even arguably constitute a collateral order for us to review. Additionally, the exercise of pendent jurisdiction would be improper here, assuming without deciding that pendent jurisdiction is ever available in criminal appeals. See Abney, 431 U.S. at 663; Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996).

At the Supreme Court, oral argument was heard on the D.C. Circuit case 25 Apr 2024. Justice Thomas effectively killed the appointment issue for the D.C. Circuit. The Amicus Brief was presented at the Circuit Court in December 2023, but the issue was not raised at the District Court, so it was not an issue for appellate review.

The Scotus transcript of oral argument is here:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_f2qg.pdf

Transcript at 34-35:

JUSTICE THOMAS: Did you, in this litigation, challenge the appointment of special counsel?
MR. SAUER: Not directly. We have done so in the Southern District of Florida case, and we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey. And --and it points to a very important issue here because one of their arguments is, of course, that, you know, 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 --or --or confirmed by the Senate at any time.
So we agree with that position. We - we hadn't raised it yet in this case when this case went up on appeal.

In Florida there are three relevant docket entries.
#326 is the Trump Motion to Dismiss with responses due by 3/7/2024.
#374 is the USA Response to #326 with responses due by 3/14/2024.
#414 is the 3/24/2024 Trump Reply to #374.

02/22/2024 326 MOTION to Dismiss 85 Indictment, Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith by Donald J. Trump. Responses due by 3/7/2024. (Kise, Christopher) (Entered: 02/22/2024)
03/07/2024 374 RESPONSE in Opposition by USA as to Donald J. Trump re 326 MOTION to Dismiss 85 Indictment, Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith Replies due by 3/14/2024. (Bratt, Jay) (Entered: 03/07/2024) [Note: #386 requested extension of time; #388 opposed extension; #390 court extended time to 3/24]
03/24/2024 414 REPLY TO RESPONSE to Motion by Donald J. Trump re 326 MOTION to Dismiss 85 Indictment, Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith (Kise, Christopher) (Entered: 03/24/2024)

Of possible interest re Ed Meese.

03/11/2024 391 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Gene C. Schaerr. Filing Fee $200.00. Receipt # FLSDC−17359656 by Citizens United Foundation, Citizens United, Gary Lawson, Steven Calabresi, Edwin Meese, III as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira. Responses due by 3/25/2024. (Attachments: # 1 Certification of Gene C. Schaerr, # 2 Text of Proposed Order)(Trent, Edward)(Entered: 03/11/2024)
03/11/2024 Attorney update in case as to Donald J. Trump, Waltine Nauta, Carlos De Oliveira. Attorney Gene C. Schaerr for Citizens United Foundation, for Citizens United, for Gary Lawson, for Steven Calabresi and for Edwin Meese, III added. (cw) (Entered: 03/12/2024)

Consider Morrison v Olsen, 487 US 654 (1988). Opinion of the Court runs from page 658-697. Syllabus encapsulating the holdings in the Opinion provided below.

https://tile.loc.gov/storage-services/service/ll/usrep/usrep487/usrep487654/usrep487654.pdf

Link goes to Library of Congress copy of Opinion as in U.S. Reports.

Syllabus
This case presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978 (Act). It arose when the House Judiciary Committee began an investigation into the Justice Department's role in a controversy between the House and the Environmental Protection Agency (EPA) with regard to the Agency's limited production of certain documents that had been subpoenaed during an earlier House Investigation. The Judiciary Committee's Report suggested that an official of the Attorney General's Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office (appellees Schmults and Dinkins) had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the Report was forwarded to the Attorney General with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as "related matters" the Judiciary Committee's allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to obstruct the EPA investigation. Appellant then caused a grand jury to issue subpoenas on appellees, who moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and that appellant accordingly had no authority to proceed. The court upheld the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoenas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2; the limitations
487 U. S. 655
of Article III; and the principle of separation of powers by interfering with the President's authority under Article II.
Held:
1. There is no merit to appellant's contention -- based on Blair v. United States, 250 U. S. 273, which limited the issues that may be raised by a person who has been held in contempt for failure to comply with a grand jury subpoena -- that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. The Court of Appeals ruled that, because appellant had failed to object to the District Court's consideration of the merits of appellees' constitutional claims, she had waived her opportunity to contend on appeal that Blair barred review of those claims. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case or Controversy" is lacking. Pp. 487 U. S. 669-670.
2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 487 U. S. 670-677.
(a) Appellant is an "inferior" officer for purposes of the Clause, which -- after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent -- states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. In addition, appellant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over, the office is terminated, either by counsel herself or by action of the Special Division. Pp. 487 U. S. 670-673.
(b) There is no merit to appellees' argument that, even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch -- that
487 U. S. 656
is, to make "interbranch appointments." The Clause's language as to "inferior" officers admits of no limitation on interbranch appointments, but instead seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." The Clause's history provides no support for appellees' position. Moreover, Congress was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers, and the most logical place to put the appointing authority was in the Judicial Branch. In light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, appointment of independent counsel by that court does not run afoul of the constitutional limitation on "incongruous" interbranch appointments. Pp. 487 U. S. 673-677.
3. The powers vested in the Special Division do not violate Article III, under which executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III. Pp. 487 U. S. 677-685.
(a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Moreover, the Division's Appointments Clause powers encompass the power to define the independent counsel's jurisdiction. When, as here, Congress creates a temporary "office," the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the office's scope in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's request for the appointment of independent counsel in the particular case. Pp. 487 U.S. 678-679.
(b) Article III does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powers -- such as the passive powers to "receive" (but not to act on or specifically approve) various reports from independent counsel or the Attorney General -- do not encroach upon the Executive Branch's authority. The Act
487 U. S. 657
simply does not give the Division power to "supervise" the independent counsel in the exercise of counsel's investigative or prosecutorial authority. And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts. Pp. 487 U. S. 680-681.
(c) The Special Division's power to terminate an independent counsel's office when counsel's task is completed -- although "administrative" to the extent that it requires the Division to monitor the progress of counsel's proceedings and to decide whether counsel's job is "completed" -- is not such a significant judicial encroachment upon executive power or upon independent counsel's prosecutorial discretion as to require that the Act be invalidated as inconsistent with Article III. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway -- this power is vested solely in the Attorney General. Pp. 487 U. S. 682-683.
(d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States. The Act gives the Division itself no power to review any of the independent counsel's actions or any of the Attorney General's actions with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Moreover, the Act prevents the Division's members from participating in
"any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office."
Pp. 487 U. S. 683-685.
4. The Act does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch. Pp. 487 U. S. 685-696.
(a) The Act's provision restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, does not impermissibly interfere with the President's exercise of his constitutionally appointed functions. Here, Congress has not attempted to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch. Bowsher v. Synar, 478 U. S. 714; and Myers v. United States, 272 U. S. 52, distinguished. The determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official does not turn on whether or not that official is classified as "purely executive." The
487 U. S. 658
analysis contained in this Court's removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Cf. Humphrey's Executor v. United States, 295 U. S. 602; Wiener v. United States, 357 U. S. 349. Here, the Act's imposition of a "good cause" standard for removal by itself does not unduly trammel on executive authority. The congressional determination to limit the Attorney General's removal power was essential, in Congress' view, to establish the necessary independence of the office of independent counsel. Pp. 487 U. S. 685-693.
(b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch's role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other information and to oversight of the independent counsel's activities, functions that have been recognized generally as being incidental to the legislative function of Congress. Similarly, the Act does not work any judicial usurpation of properly executive functions. Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. Even though counsel is to some degree "independent" and free from Executive Branch supervision to a greater extent than other federal prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Pp. 487 U. S. 693-696.
267 U.S.App.D.C. 178, 838 F.2d 476, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 487 U. S. 697. KENNEDY, J., took no part in the consideration or decision of the case.

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