Jack Smith is gearing up for his last legal battle against Donald Trump.
He’s facing one major obstacle to putting the former President behind bars.
Now Jack Smith is worried sick about this big fight with Clarence Thomas.
A future Supreme Court showdown awaits Jack Smith
Special Counsel Jack Smith is restarting his January 6 criminal case against former President Donald Trump after it was paused.
The case was on hold while the Supreme Court considered Trump’s Presidential immunity claim for most of this year.
The Supreme Court ruled in July that Presidents have absolute immunity from criminal prosecutions for official acts made while in office.
But the Justices left it to lower courts to determine what is considered an official act by a President.
Smith filed a superseding indictment for the four charges against Trump that removed evidence that was protected by Presidential immunity.
Now the Special Counsel and his rogue band of prosecutors can start moving forward with their case against the former President.
Former federal prosecutor Andy McCarthy told The Daily Wire that the next step in the case is a fight over what’s covered by Presidential immunity.
“What people need to retain as they think about this is that the first thing that Judge Chutkan has to do, no matter when it’s done, is examine the superseding indictment to determine which allegations get immunity and which don’t,” McCarthy explained.
Then the legal fight begins because both sides can appeal the judge’s ruling.
“Whatever she decides about that,” McCarthy said. “Immunity is one of the few issues in federal criminal law that a defendant is allowed to appeal pretrial. So whatever she decides, even if she leans in Jack Smith’s direction, Trump is going to be able to appeal that to the D.C. Circuit and then ultimately to the Supreme Court.”
McCarthy said that because of immunity and other pretrial issues to be sorted out, the case wouldn’t be able to start before the election.
The Supreme Court could have the final say over the case
Ultimately, it could be the Supreme Court that decides which of Trump’s actions are covered by Presidential immunity.
But there’s another problem awaiting Jack Smith at the Supreme Court.
“And I think a second issue will end up in the hands of the Supreme Court, which is the question of whether, Jack Smith has been properly appointed under the Constitution,” McCarthy stated. “So that’s another, issue that’s out there that’ll have to be resolved pre-trial.”
District Court Judge Aileen Cannon threw out Smith’s classified documents case against Trump because she ruled that he had been illegally appointed by Attorney General Merrick Garland.
“But she has found that Smith was not qualified to be Special Counsel because to be, to wield the kind of power a special counsel has you have to have one of two conditions: Either you have to be appointed by the President and confirmed by the Senate, which Smith was not, or you have to have a position that’s created by an act of Congress, a statute,” McCarthy explained.
“Smith, instead, was appointed under Justice Department rules and regulations that were promulgated during the Clinton administration,” McCarthy added.
He predicted that the Supreme Court would have to weigh in on this matter after Judge Tonya Chutkan upheld Smith’s appointment to settle the conflict between the two circuits.
Supreme Court Justice Clarence Thomas signaled that he thought Smith’s appointment was unlawful during the Presidential immunity hearing.
And that could put Jack Smith out of business for good.
