A little-noticed amicus brief, filed at the Court of Appeals for the DC Circuit, might just provide the conservative justices of the Supreme Court with a backdoor to sidestep the contentious issue of Donald Trump’s claim to absolute immunity. The maneuver, while not making headlines, could have great implications on the case of Special Counsel Jack Smith.
The amicus brief in question, authored by Edwin Meese III, Ronald Reagan’s former attorney general, alongside law professors Steven G. Calabresi and Gary Lawson, challenges the very foundation of Jack Smith’s authority to prosecute Trump.
The argument hinges on two technicalities: firstly, that Smith, being a private citizen at the time of his appointment, is ineligible to serve as special counsel; and secondly, that the attorney general lacks statutory authority to appoint a special counsel without presidential nomination and Senate confirmation.
In 1984, Reagan nominated Meese to be the 75th Attorney General of the United States, a position he held until 1988. Post his tenure as Attorney General, Meese has remained active in legal and public policy matters, holding prestigious positions at the Heritage Foundation and other organizations.
Lisa Needham, in an article on the left-wing substack Public Notice, shed light on this, explaining, “The argument raised by Meese and friends is not directly related to immunity. Instead, they assert that Jack Smith doesn’t have the authority to prosecute Trump.” This, if accepted by the Supreme Court, could circumvent the need to address Trump’s absolute immunity claim, effectively kneecapping Smith’s case without delving into the controversial immunity issue.
The second part of the argument encapsulated that the Attorney General (in this case, Merrick Garland) does not have the statutory authority to appoint a special counsel without going through a specific process. This process, according to the brief, should involve a presidential nomination followed by Senate confirmation.
Essentially, the authors are arguing that the Attorney General alone cannot appoint a special counsel like Jack Smith without this nomination and confirmation process, implying that such an appointment should be more akin to how high-level federal officials are appointed.
The implications of this legal strategy could be far-reaching. “If enough conservatives on the Supreme Court latch on to this argument, it could provide them a way out of addressing the absolute immunity issue,” wrote Needham. This approach, focusing on the technicality of Smith’s appointment rather than the broader issue of presidential immunity, could set a precedent that alters the dynamics of presidential accountability and the role of special counsels in the future.
The use of amicus briefs in such high-profile cases is not new, but their impact in shaping judicial decisions, especially in the Supreme Court, is noteworthy. Needham highlighted this by drawing parallels with the Dobbs v. Jackson Women’s Health case, where the Court’s conservatives heavily relied on amicus briefs to reach their decision.
“Trump has made clear his goal is to push all his criminal cases out until past the 2024 election, and if the conservatives at the Supreme Court help him slow play this one, he may very well get his wish.”
Along with all of the ongoing debacles, it seems increasingly unlikely that the original trial date of March 4 will be adhered to, a welcome sign for the Trump camp.