The D.C. Circuit Court of Appeals hinted Tuesday that they were willing to review Jack Smith’s eligibility to be the Special Counsel since he was not confirmed by the Senate as well as reviewing Smith’s subpoena of Trump’s phone records from the time he was in office. A ruling in either case for Trump could spell the collapse of Smith’s case against the former president. If Smith’s appointment is overturned, a new Special Counsel must be named and confirmed by the Senate and all of Smith’s work must be tossed out.
If that is the case, new charges against Trump would probably not be heard until next year. If it is ruled that Smith did not have the authority to subpoena Trump’s phone records, which seems likely, all of the alleged evidence that came from those subpoenas must be tossed out as well. It is a long tried and true principal that a president must be free to consult with advisers without fear that the advice is confidential.
The appeals court has ordered both party’s to submit briefs in making their case in preparation for the court to hear the cases. Former Attorney General Edwin Meese III, along with law professors Steven Calabresi and Gary Lawson, have previously submitted a friend of the court brief that makes the claim that Jack Smith was not properly made the Special Counsel. Trump’s lawyers must also make their case that subpoenaing Trump’s phone records is also violation of US law.
Meese and the others wrote:
“Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor. 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 Beyoncé.”
NEW: We just filed an amicus brief in the Trump election interference case, arguing that the D.C. Circuit lacks jurisdiction to hear Trump's appeal on his immunity claims. https://t.co/Tcw1WKHsrP
— American Oversight (@weareoversight) December 29, 2023
“The law is clear: Mr. Trump cannot appeal his immunity defenses until after he is tried and convicted,” Arnold & Porter partner Stanton Jones said in a statement. “He should not be allowed to use an improper appeal to delay the scheduled March trial.”
Sixteen former government officials and constitutional experts, including former Associate Counsel to President George W. Bush, Brad Berenson, and Olivia Troye, former Homeland Security and Counterterrorism Special Advisor to Mike Pence, filed a brief arguing Trump’s position “cannot be squared with the Constitution’s text or history.”
“The immunity he seeks would severely impair the ability of the current President, in whom all executive powers are vested, see U.S. Const. art. II, § 1, cl. 1, to take care that Congress’s laws proscribing obstruction of federal elections are faithfully executed,” they wrote. “And by asking the Judicial Branch to fashion a sweeping atextual immunity from whole cloth, he draws the Judiciary and the Executive into conflict.”
The Supreme Court shot down Smith’s request for it to hear Trump’s immunity claim before the D.C. Circuit weighs in Dec. 22.
District Court Judge Tanya Chutkan initially declined to dismiss Trump’s case based on presidential immunity Dec. 1, prompting his appeal to the D.C. Circuit. Chutkan wrote that the presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass.”