(HorizonPost.com) – Supreme Court Justice Clarence Thomas questioned the constitutionality of the Justice Department’s appointment of Jack Smith as the special counsel to prosecute Donald Trump’s federal election interference case in his concurring opinion on the high court’s 6-3 ruling on presidential immunity.
The majority ruled that while Trump does not have “absolute immunity” from criminal prosecution as he claimed, the former president would be immune from prosecution stemming from official acts, handing Trump a partial win in the Washington, DC federal case.
In his concurring opinion, Justice Thomas questioned whether Smith’s appointment by Attorney General Merrick Garland was legal in the first place.
He wrote that Jack Smith had not been confirmed by the Senate to serve as a US attorney and explained that even if the Justice Department special counsel had a “valid office,” there would still be questions as to whether Attorney General Garland could fill the office “in compliance with the Appointments Clause.”
Thomas explained that if the special counsel is a principal officer, Smith’s appointment would be invalid because the president did not nominate him for office and he was not confirmed by the Senate as required for all principal officers.
Trump’s attorneys have similarly argued that Jack Smith’s appointment violated the Appointments Clause because Smith was not confirmed by the Senate but rather was a “private citizen.”
The same argument was made in an amici curiae written in support of Trump in the federal classified documents case in Florida by former Attorney General Ed Meese.
US District Judge Aileen Cannon, who is presiding over the classified documents case, is currently considering the defense motion challenging Smith’s appointment.
In his concurring opinion, Justice Thomas also urged the lower courts to address the issue of whether Jack Smith was a principal or inferior officer before the cases proceeded to trial.
He noted that none of the statutes cited by Attorney General Garland appeared to “create an office for the Special Counsel” with the same clarity that was used in past statutes.
Thomas argued that while Congress gave the Attorney General the authority to appoint “additional officers,” that authority only extended to the Bureau of Prisons. He suggested that Congress may need to grant specific authority to the Attorney General to create special counsel offices.
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