The D.C. Circuit Court of Appeals hinted Tuesday it may consider questions about Special Counsel Jack Smith’s appointment, along with other issues such as the timing of Trump’s presidential immunity appeal.

The court asked parties in an order Tuesday to be prepared for questions about “discrete issues” raised in friend-of-the-court briefs when it considers Trump’s bid to dismiss his 2020 election case based on presidential immunity during oral arguments on Jan. 9. Briefs filed include one challenging Smith’s appointment as unconstitutional and another arguing Trump cannot raise the immunity challenge until after a conviction and trial.

Former Attorney General Edwin Meese III, along with law professors Steven Calabresi and Gary Lawson, filed an amicus brief arguing that no statute or constitutional provision enables the attorney general to appoint “a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”

“Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” they wrote. “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

American Oversight filed a brief telling the court that Trump’s immunity appeal is premature. Under Supreme Court precedent, a criminal defendant cannot raise a claim to immunity before conviction unless that immunity “rests upon an explicit statutory or constitutional guarantee that trial will not occur,” the brief argues.

“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 on 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.”

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Katelynn Richardson

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