On Monday, Justice Clarence Thomas of the Supreme Court questioned the legitimacy of the Biden administration’s appointment of Jack Smith as special counsel to look into and prosecute Donald Trump, the former President.
In a concurring opinion submitted following the Supreme Court’s 6-3 decision that grants 78-year-old Trump complete immunity from prosecution for “official acts” committed while in office, the conservative justice brought up the question of Attorney General Merrick Garland’s selection of Smith.
Thomas said that Smith’s issues “highlight another way in which this prosecution may violate our constitutional structure.”
“Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law.'”
“The President and Vice President are the two most visibly created offices under the Constitution. The Constitution expressly states that those posts “shall be established by Law,” even while it acknowledges the existence of “other Officers of the United States, whose Appointments are not herein otherwise provided for,” Thomas noted.
Thomas went on, “The Constitution establishes a crucial check on the President – he cannot create posts at his pleasure” by requiring Congress to create federal offices “by Law.”
In this instance, there has been a great deal of talk about making sure the president ‘is not above the law.’ However, as the Court clarifies, the President is legally immune from punishment for actions taken while in office. “The security of liberty depends on an active executive branch, which is why the Constitution guarantees it,” Thomas said.
In his argument, Thomas stated that “a private citizen cannot criminally prosecute anyone, let alone a past President.”
Liberty is secured when the Office of the President is treated with respect for the safeguards the Constitution affords it. In the same spirit, the Constitution guarantees liberty by dividing the authorities over the establishment and appointment of public office. Furthermore, Thomas stated, “If this historic prosecution is to proceed, it must be led by someone duly authorized to do so by the American people. There are serious questions as to whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.” “The lower courts should thus answer these essential questions concerning the special counsel’s appointment before proceeding.”
Prior to being appointed by Garland in November 2022, Smith was a top prosecutor for the International Criminal Court in The Hague. He has filed two criminal cases against Trump: one concerns the presumed Republican presidential nominee’s alleged mishandling of classified White House documents, and the other concerns Trump’s purported attempts to rig the 2020 election results.
Trump claimed that Smith was improperly appointed in his move to dismiss the case involving confidential information, but he did not make the same claim in relation to the election meddling case.
Trump’s move for the lawsuit to be dismissed has not yet been decided by US District Judge Aileen Cannon, who is in charge of the Florida case involving classified materials.