Supreme Court Justice Clarence Thomas on Monday questioned the legality of the Biden administration appointing special counsel Jack Smith to investigate and now prosecute former President Donald Trump.
The conservative jurist raised the issue of Smith’s appointment by Attorney General Merrick Garland in a concurring opinion filed after the high court’s 6-3 ruling that Trump, 78, enjoys absolute immunity from prosecution for “official acts” during his presidency.
Thomas noted that his points about Smith “highlight another way in which this prosecution may violate our constitutional structure.”
“[T]here are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law,” Thomas wrote, arguing that “[t]hose questions must be answered before this prosecution can proceed.”
The justice explained Garland “purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States” but “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.”
“[I] am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires,” Thomas continued. “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 argued that “a private citizen cannot criminally prosecute anyone, let alone a former President.”
Smith, who was serving as a top prosecutor for International Criminal Court in The Hague prior to being tapped by Garland in November 2022, has brought two criminal cases against Trump: One over the presumptive Republican nominee for president’s alleged mishandling of classified White House documents and another over Trump’s alleged efforts to overturn the results of the 2020 election.
Trump filed a motion to dismiss the classified documents case on the grounds that Smith was illegally appointed, but he did not do so in the election interference case.
US District Judge Aileen Cannon, who is overseeing the classified documents case out of Florida, has not ruled on Trump’s motion to dismiss.
Former Attorney General Ed Meese, who served under former President Ronald Reagan, argued prior to the Supreme Court’s Monday ruling that the high court should reject Smith’s request to not grant Trump absolute immunity because he was unconstitutionally appointed to begin with.
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” Meese wrote in an amicus brief.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” he added.
Thomas stated that courts need to rule on whether Smith “is a principal or inferior officer” in order to determine whether he was constitutionally appointed.
“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,” he said.
“Those questions must be answered before this prosecution can proceed.”
