Justice Thomas questions legitimacy of Biden DOJ's special counsel Jack Smith in prosecuting Trump

As the Supreme Court is heard arguments regarding presidential immunity on Thursday, Justice Clarence Thomas posed a question regarding the legitimacy of the appointment of special counsel Jack Smith to prosecute Donald Trump.

The ongoing proceedings in the court revolve around whether Trump has constitutional presidential immunity from prosecution for actions taken during his presidency. Thomas' question examined the authority of Smith and the Office of Special Counsel to bring forward charges against Trump, according to Fox News.

Thomas questioned John Sauer, Trump's attorney, asking if Trump's legal team had challenged the appointment of the special counsel in the current litigation. 

"Did you, in this litigation, challenge the appointment of special counsel?" Thomas asked.

Sauer responded that they had not directly raised this concern in the ongoing case.

"It points to a very important issue here because one of [the special counsel's] arguments is, of course, that we should have this presumption of regularity,” Sauer explained. “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 confirmed by the Senate at any time. So we agree with that position. We hadn't raised it yet in this case when this case went up on appeal."

In a notable amicus brief presented to the Supreme Court in March, former US attorneys general Meese and Mukasey also questioned the legal authority of Smith to prosecute Trump. They argued that Smith's position as special counsel does not meet the criteria for proper appointment as a federal officer, given that he was never formally appointed and confirmed by the Senate. 

“Neither Smith nor the position of special counsel under which he purportedly acts meets those criteria,” Meese and Mukasey argued. “He wields tremendous power, effectively answerable to no one, by design. And that is a serious problem for the rule of law — whatever one may think of former President Trump or the conduct on January 6, 2021, that Smith challenges in the underlying case."

The Supreme Court's deliberations are centered on Trump's claims of immunity from prosecution related to the events of January 6. A ruling against presidential immunity could potentially render Trump criminally liable for his actions on that day.