Justice Clarence Thomas, writing a concurring opinion for Monday’s Supreme Court ruling on presidential immunity, questioned the constitutionality of the appointment of special counsel Jack Smith, suggesting not only that the position was invalid but that Smith could not legally hold the position.
Thomas Page 9 Consent They suggest Smith’s appointment is unconstitutional and that lower courts will need to address the issue. They also question whether Smith’s appointment itself violates the Appointments Clause of the Constitution, and whether “the position of special counsel was ‘created by law,’ as the Constitution requires.”
“These questions must be answered before we move forward with this prosecution,” Thomas concluded. “We must respect every fiber of the Constitution’s separation of powers or we risk reducing the protection of liberty to a parchment guarantee.”
The Supreme Court ruled 6-3 on Monday that presidents have limited immunity from criminal prosecution for actions while in office. The ruling stems from Smith’s prosecution of President Donald Trump in Washington, D.C., for meddling in the 2020 presidential election. Smith is also prosecuting Trump in Florida for storing classified documents.
Thomas’ legal reasoning could provide guidance to Judge Eileen Cannon, who is presiding over Smith’s classified documents case, who heard arguments on June 21 that Attorney General Merrick Garland’s appointment of Smith as special counsel was unconstitutional. Her ruling could deal a significant blow to Smith’s case in Washington as well as Florida.
The hearings centered on briefs submitted by former federal prosecutors Ed Meese and Michael Mukasy, Citizens United and constitutional law scholars who argued that Garland improperly appointed Smith to a position that didn’t exist and with authority that Garland didn’t have. Gene Shah of the boutique law firm Shah Jaffe argued on behalf of the groups at the June hearing.
Thomas’s concurring opinion first considered whether Smith’s appointment complied with the Appointments Clause, which provides that “officials of the United States” must be nominated by the President and confirmed by the Senate, while also giving Congress the power to create certain offices.
“By requiring Congress to create federal agencies ‘by law,’ the Constitution places an important check on the president: he cannot create agencies of his own volition,” Thomas wrote. “Without a statute creating the office of special counsel, he cannot proceed with this prosecution. A private citizen cannot criminally indict anyone, let alone a former president.”
Thomas noted that Congress had previously created an office similar to a special counsel, called an “independent counsel,” but that law expired in 1999. The Congress that created the Justice Department authorized officials with similar authority and powers to those Garland gave Smith, but those officials require presidential appointment and Senate confirmation.
Because of these limitations, special counsels are typically appointed from among federal prosecutors who have already been confirmed by the Senate, but Garland hired Smith as a civilian and gave her the powers of a constitutional officer, even though she was merely an employee of Garland’s.
“If this unprecedented prosecution is to proceed, it must be done by someone duly authorized by the American people,” Thomas said, noting that a former president has never before been criminally charged.
Thomas detailed the Founding Fathers’ reasoning for giving the president the power to appoint Senate officers but not the power to create positions, which was born out of concerns about the British king’s “monarchical model.”
“By stripping the president of the power to create offices, the Founding Fathers ensured that a president could not unilaterally create a plethora of offices and fill them with his supporters,” he writes. “Instead, our Constitution leaves it to the people’s elected representatives to decide whether new executive offices should come into existence.”
Trump and his allies argue that Smith’s prosecution is a politically weaponized legal fight designed to thwart Trump’s reelection and keep Garland and Smith’s boss, Joe Biden, in office.
Justice Thomas then moved on to the second question of whether the Special Counsel’s office was properly established. The skeptical justice wrote that “it is difficult to see how the Special Counsel could have an office that is ‘statutorily established’ as required by the Constitution.”
He added, “When the Attorney General appointed the Special Counsel, he did not identify a statute that specifically defined such a position, nor did he rely on statutes giving the Attorney General the authority to appoint officials he deems appropriate, as heads of other agencies do. Instead, the Attorney General relied on several statutes that are general in nature.”
Thomas argues that the various statutes that Garland vaguely cites to justify Smith’s appointment lack “the clarity typical of past statutes used for that purpose.” He goes on to harshly criticize each of the statutes Garland cites in his justification.
Articles 509 and 510 are general provisions concerning the functions of the Attorney General and his ability to delegate his powers to “any other officer, employee, or agency.” Article 515 contemplates “attorneys specially appointed by the Attorney General under law,” implying that such an office must already have been established by other legislation. Article 533 is[t]”The Attorney General may appoint officials to investigate and prosecute crimes against the United States.” It is unclear whether “officers” is equivalent to “officers” as used in the Constitution. In any case, this provision would be a strange place for Congress to hide the creation of the Office of Special Counsel. The provision is placed in a chapter on the Federal Bureau of Investigation, not in a separate chapter on United States Attorneys or the now-defunct Independent Counsel.
He added, “Indeed, the Court made brief reference to the statutes cited in United States v. Nixon in support of the appointment of a special counsel, but did not analyze the text of those provisions. There is probably an answer as to why those statutes create the office of a special counsel, but there should at least be a full explanation of why before this important prosecution goes forward.”
Thomas summed up the concurring opinion, addressing whether Smith was a “principal or subordinate officer” and concluding that in either case his appointment was invalid. He wrote:
Even if the Special Counsel is serving a valid office, the question remains as to whether the Attorney General served in accordance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a senior or minor official. If it is the former, the appointment is invalid because the Special Counsel was not nominated by the President or confirmed by the Senate, which would be the case for a senior official. Even if the Special Counsel is a minor official, the Attorney General may appoint a Special Counsel without a presidential nomination or Senate confirmation only if “Congress has by law … empowered the Special Counsel.”[ed] The “appointment” of the Attorney General as “Chief”[d] Thus, the appointment of a special counsel is invalid unless the office of special counsel is created by statute and the attorney general is empowered “by law” to fill the office.
Questions about the constitutionality of Smith’s appointment have eluded any substantive public scrutiny: mainstream print media and television commentators have almost uniformly dismissed the issue as a political stunt and ignored the legal questions.
Throughout his concurring opinion, Thomas makes it clear that Smith’s appointment deserves review on legal grounds.
“Whether the Office of Special Counsel is ‘created by law,’ is not a minor technical question,” he wrote. “When Congress has not agreed that a particular office should exist, the executive branch does not have the authority to unilaterally create that office and staff the position.”
In his testimony before Congress, Garland has largely avoided questions about why he made the legally risky decision to appoint Smith, who has a history of unsuccessfully prosecuting prominent politicians and is known for his willingness to use vaguely worded federal statutes and legally extreme interpretations to exclude people from prosecution.
The timeline for Garland’s decision and other actions taken by the White House could shed light on his thinking.
On the same day that Garland appointed Smith to reopen the Justice Department’s cases against Trump in Washington and Florida, Fulton County Deputy District Attorney Nathan Wade spent a whopping eight hours in the White House Counsel’s office on official business related to his role in prosecuting Trump, Biden’s No. 3 official at the Justice Department resigned to take a lower-profile deputy prosecutor role in the office of District Attorney Alvin Bragg in Manhattan.
As exposed by Breitbart News, that date — Nov. 18, 2022 — came just nine days after Biden, at a White House press conference, vowed to take steps beyond the ballot box to prevent former President Donald Trump’s reelection.
The case that was decided on Monday Trump vs. the United StatesU.S. Supreme Court No. 23-939. Cannon’s cases are America vs Trump9:23-cr-80101, U.S. District Court for the Southern District of Florida.
Bradley Jay is Capitol Hill correspondent for Breitbart News. Follow him on X/Twitter. translation:.
