A recently filed amicus brief in the Court of Appeals for the DC Circuit could offer conservative Supreme Court justices a potential strategy to avoid addressing Donald Trump’s claim to absolute immunity.
The brief, authored by Edwin Meese III, Ronald Reagan’s former attorney general, along with law professors Steven G. Calabresi and Gary Lawson, challenges the foundation of Special Counsel Jack Smith’s authority to prosecute Trump.
The argument centers on two technicalities: firstly, that Smith, having been 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.
Meese, who served as Attorney General from 1984 to 1988, along with the law professors, asserts that Smith does not have the authority to prosecute Trump. This argument, if accepted, could provide a way for the Supreme Court to sidestep the contentious issue of absolute immunity without directly addressing it.
The second part of the argument challenges the statutory authority of the Attorney General, in this case, Merrick Garland, to appoint a special counsel without a specific process involving presidential nomination and Senate confirmation. The brief suggests that the appointment of a special counsel should follow a process similar to how high-level federal officials are appointed.
The potential implications of this legal strategy are significant. By focusing on the technicalities of Smith’s appointment rather than the broader issue of presidential immunity, it could set a precedent that alters the dynamics of presidential accountability and the role of special counsels in the future.
Lisa Needham, writing on the left-wing substack Public Notice, explained that if enough conservative Supreme Court justices support this argument, it could provide them with an avenue to avoid addressing the absolute immunity issue. This approach may shape the legal landscape around presidential accountability and investigations into former presidents.
Amicus briefs, while not a new legal tool, have played a noteworthy role in influencing judicial decisions, particularly in high-profile cases. The potential impact of this strategy is underscored by comparisons with the Dobbs v. Jackson Women’s Health case, where conservative justices heavily relied on amicus briefs to reach their decision.
Trump’s aim to delay criminal cases until after the 2024 election could benefit from such legal strategies, potentially slowing down the legal proceedings in his favor. The outcome of this case may have broader implications for the balance between presidential immunity and accountability in the United States.