Smith “lacks authority,” according to the Supreme Court petition, to request that the country’s highest court immediately rule on the immunity argument.
“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 create federal offices,” the motion states.
“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
Smith’s legal battles with Trump are facing new difficulties as a result of a recent U.S. Chief Justice John Roberts of the Supreme Court.
A three-judge panel of the Federal Appeals Court in Washington, D.C., last week unanimously denied President Trump’s broad claim of immunity.
While they wait for the Supreme Court to rule on Trump’s request for emergency relief, the judges decided not to remand the case for trial.
Smith wants the courts to decide the immunity dispute quickly, which could postpone Trump’s trial in Washington, D.C. between March 4 and a later time.
In December, before the D.C. case, the special counsel asked the Supreme Court to consider the immunity issue in order to expedite a swift resolution. Review by the Circuit Court of Appeals. The justices rejected the request in spite of this.
“This Court’s immediate review of that question is the only way to achieve its timely and definitive resolution,” Smith wrote in the December filing. “The Nation has a compelling interest in a decision on [Trump’s] claim of immunity from these charges — and if they are to be tried, a resolution by conviction or acquittal, without undue delay.”
Justice Alito expressed concerns during a hearing on removing Trump from the 2024 ballot due to claims of insurrection against Colorado’s strict ban on Trump’s eligibility to run for president.
