Day: December 20, 2023

Donald Trump and Jack Smith are both beefing up their legal teams in preparation for a potential Supreme Court showdown — but when it comes to experience arguing before the justices, the difference could hardly be more stark.

Smith, the special counsel prosecuting the former president, has brought in one of the most accomplished modern Supreme Court advocates: Michael Dreeben, who has argued more than 100 cases at the high court and is a preeminent authority on the court’s criminal law doctrines.

Trump has added at least three lawyers, none of whom are part of the clubby cohort of Supreme Court advocates. They are D. John Sauer, Will Scharf and Michael Talent, according to a person familiar with Trump’s plans. All three are based in Missouri, and according to a database of Supreme Court arguments, Sauer has argued a single case, while Scharf and Talent have not argued before the court.

The two teams may collide soon in a high-stakes skirmish at 1 First Street. Last week, Smith petitioned the Supreme Court to swiftly weigh in on Trump’s claim that he is immune from being prosecuted for his efforts to overturn the 2020 election. Smith hopes the court will take the case on an expedited basis in order to keep Trump’s Washington, D.C., trial — scheduled to begin March 4 — on track.

If the justices take the case and Dreeben and Sauer go head to head, it will be a study in contrasts. Dreeben is an institutionalist who spent three decades at the Justice Department defending the power of the executive branch to investigate and prosecute crimes — experience that surely will be relevant as he backs Smith’s prosecution of Trump. Sauer, meanwhile, is a veteran of the conservative legal community who’s best known for his involvement in Republican-backed lawsuits that blocked Joe Biden’s student-debt cancellation and accused the Biden administration of social-media censorship.

Smith recruits a SCOTUS veteran

Smith’s Supreme Court petition came as a surprise, not least because of the notable name on the cover page. Dreeben was listed as “counsel of record” in the case and as “counselor” to Smith. That was the first public indication that Dreeben was working with Smith, and it’s a strong signal that, if the justices take the case, Dreeben will be the one arguing.

He’s a trusted and familiar face to the justices. After spending more than three decades in the U.S. solicitor general’s office, where he specialized in criminal law, Dreeben moved to the law firm O’Melveny & Myers in 2020. There he maintained a robust Supreme Court practice, including a 2022 case in which he romped to a 9-0 victory, persuading the justices to reverse the conviction of a New York developer accused of wire fraud.

“He is cerebral, he is thoughtful, he is brilliant,” said Mary McCord, a former senior Justice Department official who overlapped with Dreeben.

Dreeben’s profile on the O’Melveny website was recently taken down, presumably to reflect his move to the special counsel’s team. A spokesperson for the special counsel’s office declined to comment.

This isn’t the first time Dreeben has helped a special counsel investigating Trump. While Trump was president, Dreeben worked on special counsel Robert Mueller’s probe of links between Trump’s campaign and Russia. He helped work on litigation related to Mueller’s authority.

Trump adds a trio of lawyers from outside the beltway

Trump appears likely to face multiple battles at the Supreme Court in the coming months. In addition to Smith’s petition on Trump’s claim of presidential immunity in the criminal case, the justices seem all but certain to review a Colorado decision on Tuesday that declared Trump ineligible to become president under the 14th Amendment.

So far, Trump has not added any veteran Supreme Court advocates to his team. Instead, he will be represented by a trio of conservative lawyers from the Show-Me State. They will bolster an already expansive team of lawyers defending Trump in numerous criminal and civil cases across multiple jurisdictions.

Sauer, the most senior of the three attorneys, is a Rhodes Scholar and Harvard Law graduate who clerked for the late Supreme Court Justice Antonin Scalia. He was solicitor general of Missouri from 2017 to 2023, helming the state’s affairs before the Supreme Court under two attorneys general: Josh Hawley and Eric Schmitt, both now U.S. senators. In that position, Sauer argued his only Supreme Court case, which he won 5-4 when the court rejected a death-row prisoner’s challenge to Missouri’s execution procedures.

Sauer has drawn national attention for helping spearhead a lawsuit accusing the Biden administration of pressuring social media companies to engage in censorship. In September, an appeals court sided with Missouri and other red states in the case, limiting the Biden administration’s power to interact with tech companies. But the Supreme Court temporarily paused that injunction and will hear the case in its current term.

Scharf, who is running for Missouri attorney general, also graduated from Harvard Law. He worked at the conservative advocacy group Judicial Crisis Network, where he supported political efforts backing the confirmation of Justice Brett Kavanaugh. Then he spent two and a half years working as a federal prosecutor in St. Louis. During that time, he was detailed to Justice Department headquarters to work on Justice Amy Coney Barrett’s confirmation. He now works at the James Otis Law Group, a firm helmed by Sauer.

Talent, the third member of the team, graduated from Stanford Law and clerked for Judge James Ho, an outspoken appellate judge appointed by Trump. He also worked as a staffer on the National Security Council at the end of the Trump administration.

“He’s the hardest working young lawyer I’ve ever seen,” said a former NSC official granted anonymity because of legal sensitivities. “His IQ must be 150, 160. He’s a smart kid.”

After his time at the White House, Talent headed to the Missouri solicitor general’s office. He worked there under Sauer on the state’s lawsuit alleging censorship by the Biden administration and a successful challenge to the White House’s student debt cancellation plan.

Steven Cheung, a spokesperson for the Trump campaign, praised the legal team as “some of the most experienced, qualified and determined minds in American jurisprudence.” And he mocked Smith for adding Dreeben to his roster.

“Deranged Jack Smith and his team have been so badly outmatched by President Trump’s powerhouse attorneys, that ‘Deranged’ had to beg a tainted Democrat operative, who helped engineer the exposed Mueller hoax, to come to try and save them. That pathetic attempt will fail,” Cheung said.

John Lauro and Todd Blanche, two trial lawyers defending Trump in lower courts, are also involved in Trump’s Supreme Court-related work, according to a person close to the legal team. Another prominent Trump lawyer, Chris Kise, previously served as Florida solicitor general and has won four cases before the high court. He is currently working on the New York civil suit against Trump and is not involved in Supreme Court work at present but is available to advise, that person added.

1of5FILE – Rep. Scott Perry, R-Pa., chair of the House Freedom Caucus, speaks during a news conference on Capitol Hill in Washington, July 14, 2023.

CNBC’s Andrew Ross Sorkin, Becky Quick and Joe Kernen discuss the latest developments in the 2024 presidential election.

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“It is theoretically possible that they could say, hey, he did engage in insurrection and if states want to take him off the ballot then they are free to do so.”

Politco reporter Daniel Lippman explains it’s possible that some of the US Supreme Court judges appointed by President Trump himself could reject this appeal against Colorado’s ruling to block him from running in 2024.

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A slim majority of the Colorado Supreme Court ruled that former president Donald Trump is disqualified from appearing on the state’s ballot under Section 3 of the 14th Amendment of the US Constitution, which bars anyone engaged in “insurrection or rebellion” from holding federal office. A lower court judge previously ruled that Trump’s actions on Jan. 6, 2021, during a violent attack on the US Capitol by his supporters amounted to insurrection but stopped short of disqualifying him, saying Section 3 does not apply to presidents. The Colorado Supreme Court paused its own ruling pending review by the US Supreme Court, which Trump said he will immediately seek. FRANCE 24’s Douglas Herbert brings you this analysis.

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