In an amicus brief submitted today to the Supreme Court, CREW urged the Court to dismiss arguments in support of President Donald Trump that Attorney General Merrick Garland did not have the legal authority to appoint Special Counsel Jack Smith, given that Trump did not challenge the validity of Special Counsel Smith’s appointment at the trial court level. CREW wrote that it is not within the Supreme Court’s jurisdiction to answer this question, but should the Court decide to address it, Attorney General Garland was well within his right and legal authority to appoint Special Counsel Smith to investigate Trump’s alleged crimes.

As CREW’s brief discusses, the Supreme Court cannot consider Donald Trump’s argument that Special Counsel Smith’s appointment is invalid at this juncture, and should not decide to answer that unlitigated question. Trump’s efforts to seize power threatened many public interests, including our ability to hold our elected officials accountable for misconduct, and deciding this issue prematurely would only compromise them more.

Special Counsel Jack Smith’s investigation into Trump seeks to hold the former president accountable for his actions following the 2020 presidential election. After his loss in November 2020, Trump led efforts to undermine the validity of the election results through false statements to the courts and legislatures, corrupt pressure on government officials and repeated calls for violence to avoid losing power in January 2021. Ultimately, he incited a violent attack on the U.S. Capitol and blocked the counting of the Electoral College votes, disrupting the peaceful transfer of power for the first time in American history. 

Trump’s claim of presidential immunity from criminal prosecution and his alleged criminal conspiracy both threaten to upend our right to self-government and the separation of powers. In 2021, he tried to unlawfully obstruct the constitutionally-mandated congressional proceedings that grant power to our elected President every four years. If he cannot be prosecuted, his next attempt to seize power could put the presidency beyond the reach of Congress and the electorate for good. 

Presidents take an oath to “preserve, protect, and defend” the Constitution.” They should not be beyond reproach and allowed to exist and operate above the law. 

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