Special Counsel Jack Smith has brought two indictments against former President Donald Trump, one of which concerns his actions following the 2020 election.

However, an intervention by Supreme Court Justice Clarence Thomas last week casted doubt on whether Smith can proceed with the case. 

Thomas asks Trump lawyer about Smith's appointment

As Fox News reported, the Supreme Court heard oral arguments on Thursday from Trump's defense team and attorneys from Smith's office over whether the former president enjoys immunity from prosecution.

At one point Thomas asked Trump attorney John Sauer, "Did you, in this litigation, challenge the appointment of special counsel?"

Sauer responded by saying that while the defense did not "directly," he added that "we totally agree with the analysis provided by Attorney General Meese [III] and Attorney General Mukasey."

Sauer was referring to a 42-page amicus brief submitted last March by Meese and Mukasey which denied that "Jack Smith has lawful authority to undertake the 'criminal prosecution'" of the former president.

Smith was not confirmed by Senate

They noted that federal prosecutions "can be taken only by persons properly appointed as federal officers to properly created federal offices."

"But neither Smith nor the position of special counsel under which he purportedly acts meets those criteria," the attorneys general pointed out.

"He wields tremendous power, effectively answerable to no one, by design. And that is a serious problem for the rule of law — whatever one may think of former President Trump or the conduct on January 6, 2021, that Smith challenges in the underlying case," they added.

At issue is the fact that Smith was never confirmed by the Senate as a U.S. attorney, and while he did serve as an acting U.S. attorney for a federal district in Tennessee, he was never nominated to that position.

This is a problem, Meese and Mukasey contend, since federal law does not provide the U.S. attorney general with unlimited discretion in naming a special counsel, who exercises far more power than any other official who is not confirmed by the Senate.

"Smith's appointment was thus unlawful"

They thus concluded that "the Attorney General cannot appoint someone never confirmed by the Senate, as a substitute United States Attorney under the title 'Special Counsel.'"

"Smith's appointment was thus unlawful, as are all actions flowing from it, including his prosecution of former President Trump," the pair added.

Fox News pointed out that other recent special counsels, such as John Durham and Robert Hur, had previously been confirmed to the Senate for other positions.