Trump and Jack Smith to Face Major Questions Soon, Court Writes

(Left) Special Counsel Jack Smith delivers remarks in Washington on Aug. 1, 2023. (Right) Former President Donald Trump attends his trial in New York State Supreme Court in New York City on Dec. 7, 2023. Drew Angerer, David Dee Delgado/Getty Images

On Tuesday, the Washington Circuit Court of Appeals wrote that it could consider questions raised regarding issues that were raised by outside legal experts in former President Donald Trump’s election case.

The court may ask questions regarding whether special counsel Jack Smith was lawfully appointed to oversee President Trump’s case, coming after a former attorney general, Edwin Meese, filed an amicus brief suggesting that he wasn’t.

The appeals court wrote in a brief order that involved parties should be prepared for “any inquiries by the Court regarding discrete issues raised in the briefs” regarding issues that were raised by former Attorney General Edwin Meese in his filing that Mr. Smith’s appointment was illegal. He, along with two law professors, argued that there is no provision in the Constitution to allow an attorney general to name “a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel,” which is what they argued was done in regards how Mr. Smith was appointed by the Department of Justice.

“Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” he wrote. “Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyonce.”

Other friends of the court briefs that were filed in the case were submitted by the nonprofit group American Oversight, a group of former government officials in five Republican presidential administrations, and a group of 16 former government officials.

American Oversight submitted court papers telling the appeals court that President Trump’s immunity appeal can’t made because he hasn’t been tried or convicted.

The group argued that a criminal defendant can’t raise a claim to immunity ahead of a conviction because it “rests upon an explicit statutory or constitutional guarantee that trial will not occur.”

The 16 former officials argued that President Trump’s arguments can’t “be squared with the Constitution’s text or history,” adding, “The immunity he seeks would severely impair the ability of the current President, in whom all executive powers are vested.”

“And by asking the Judicial Branch to fashion a sweeping atextual immunity from whole cloth, he draws the Judiciary and the Executive into conflict,” it said.

A three-judge panel is set to hear arguments on Jan. 9. Two of the judges, J. Michelle Childs and Florence Pan, were appointed by President Joe Biden. The third, Karen LeCraft Henderson, was assigned to the bench by former President George H.W. Bush.

Supreme Court

In a separate filing, Mr. Meese wrote that the Supreme Court should reject Mr. Smith’s requests “for the simple reason that he lacks authority to ask for it” regarding Mr. Smith’s petition to the high court to determine whether President Donald Trump has immunity from prosecution relating to his federal election case. “Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices.”

That filing further asserted that Attorney General Merrick Garland also “exceeded his statutory and constitutional authority” when Mr. Smith was appointed last year to oversee two federal cases targeting President Donald Trump. While Mr. Garland has cited a statute for the appointment, the statute is not even “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel,” they continued.

Last month, the Supreme Court shot down Mr. Smith’s attempt to fast-track the immunity-related case, suggesting that the federal election trial date could be pushed back and leaving the matter with the appeals court. The judge overseeing the case, Judge Tanya Chutkan, put a hold on the case until those questions are resolved.

Over the past weekend, the special counsel’s team urged the federal appeals court to reject Trump’s immunity claims, saying the suggestion that he cannot be held to account for crimes in office “threatens the democratic and constitutional foundation” of the country.

President Trump’s lawyers maintain that the appeals court should order the dismissal of the case, arguing that as a former president, he is exempt from prosecution for acts that fell within his official duties as president.

But the Smith team has said no such immunity exists in the U.S. Constitution or in case law and that, in any event, the actions that the former president took after the 2020 election aren’t part of a president’s official responsibilities.

President Trump faces three other criminal prosecutions. He is charged in Florida for allegedly retaining classified documents at his Mar-a-Lago estate and faces a state prosecution in Georgia that accuses him of trying to subvert that state’s 2020 election and a New York case that accuses him of falsifying business records in 2016.

The former president has denied all wrongdoing and pleaded not guilty, saying the charges are part of an attempt to diminish his political influence before the November election.

The Associated Press contributed to this report.