Associate Justice Clarence Thomas questioned whether special counsel Jack Smith’s appointment would stand up to constitutional muster Monday in a concurring opinion to the Supreme Court’s decision on presidential immunity.
The high court ruled in favor of former President Donald Trump’s claims of immunity for “official acts” in a case stemming from an indictment secured by Smith over his efforts to contest the 2020 election. In an opinion concurring with the decision written by Chief Justice John Roberts, Thomas took aim at the appointment of Smith, citing provisions of Article II of the Constitution. (RELATED: ‘Didn’t Bring Up Any Of This’: DCNF Reporter Details How Merrick Garland Failed To ‘Engage’ With ‘Claims’ In Op-Ed)
“I write separately to highlight another way in which this prosecution may violate our constitutional structure,” Thomas wrote. “In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
Supreme Court Rules Trump Has Immunity For ‘Official Acts’ In Appeal https://t.co/AnkOBANGjK
— Daily Caller (@DailyCaller) July 1, 2024
“By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure,” Thomas continued. “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”
Attorney General Merrick Garland appointed Smith to oversee allegations surrounding retention of classified material by Trump and the former president’s alleged involvement in trying to overturn 2020’s election results. Smith eventually charged Trump with “conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding.”
United States District Judge Aileen Cannon of the Southern District of Florida heard arguments about the constitutionality of Smith’s appointment in June. (RELATED: Jonathan Turley Rips Jack Smith For ‘Serious Problem Of Restraint’ On Trump Gag Order Request)
“Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be,” Thomas wrote. “Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if ‘Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.’ So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.’”
“Whether the Special Counsel’s office was ‘established by Law’ is not a trifling technicality,” Thomas continued. “If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office.”
The Department of Justice didn’t immediately respond to the Daily Caller News Foundation’s request for comment.
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