Justice Clarence Thomas wrote a concurring opinion to Monday’s Supreme Court decision on presidential immunity questioning the constitutionality of Special Counsel Jack Smith’s appointment, suggesting not only is the office invalid but Smith cannot legally hold it.
Thomas’s nine-page concurrence suggests that Smith’s appointment is unconstitutional and that lower courts must tackle this issue. He questions whether Smith’s appointment itself violates the Appointments Clause of the Constitution as well as whether “any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
“Those questions must be answered before this prosecution can proceed,” Thomas concludes. “We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”
The Supreme Court ruled Monday in a 6-3 decision that presidents are covered by limited immunity from criminal prosecutions for actions taken while in office. That ruling stemmed from Smith’s prosecution of President Donald Trump in Washington, DC, over allegations he interfered in the 2020 election. Smith is also prosecuting Trump in Florida for the retention of classified documents.
Thomas’s legal reasoning could provide a roadmap for Judge Aileen Cannon, who while presiding over Smith’s classified documents case heard arguments in a June 21 hearing that U.S. Attorney General Merrick Garland’s appointment of Smith as special counsel is unconstitutional. Her ruling could potentially strike a critical blow to Smith’s case in Florida as well as Washington.
At the heart of the hearing was a brief filed by former U.S. Attorneys Ed Meese and Michael Mukasey, Citizens United, and constitutional scholars. The brief claims Garland improperly appointed Smith to an office that does not exist with authority Garland does not possess. Gene Schaerr with the boutique law firm Schaerr Jaffe argued on behalf the group during the June hearing.
Thomas’s concurring opinion first examined whether Smith’s appointment complied with the Appointments Clause. That constitutional provision stipulates that “Officers of the United States” must be nominated by the President and confirmed by the Senate while also giving Congress the authority to create specific offices.
“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 wrote. “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.”
Thomas noted that Congress previously established an office similar to a special counsel called an “independent counsel,” but that statute expired in 1999. Congress – which created the Department of Justice – has authorized officers with authority and powers similar to those Garland granted Smith, but those officers require presidential appointment and senatorial confirmation.
Given those restrictions, special counsels are generally detailed from the pool of federal prosecutors, which have already received Senate confirmation. Yet Garland hired Smith as a private citizen, granting him the powers of a Constitution officer despite Smith being no more than an employee of Garland.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas said, noting no former president has ever faced criminal prosecution.
Thomas elaborated on the Founders’ reasoning for giving the president the power to nominate officers to the Senate but not to create offices – reasoning which grew from their concerns with the “monarchial model” of the British king.
“By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters,” he writes. “Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.”
Trump and his allies argue that Smith’s prosecutions are politically weaponized lawfare designed to weaken block Trump’s reelection and keep Garland and Smith’s boss, Joe Biden, in office.
Thomas then pivoted to his second question, whether the office of Special Counsel was properly established. The dubious Justice writes “It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution.”
He continued, “When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have. Instead, the Attorney General relied upon several statutes of a general nature.”
Thomas argues that the various statutes Garland vaguely cites to justify Smith’s appointment lack “the clarity typical of past statutes used for that purpose.” He proceeds to excoriate individually the statutes Garland cites as justification:
Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation, not the separate chapters concerning U. S. Attorneys or the now-lapsed Independent Counsel.
He continues, “To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.”
In summarizing his concurrence, Thomas addresses whether Smith is a “principal or inferior officer,” concluding his appointment is invalid in either case. He writes:
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. 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.”
The question of the constitutionality of Smith’s appointment has avoided substantive public examination. Establishment print media and television talking heads almost uniformly have dismissed the question as a political exercise, ignoring the legal questions at play.
Throughout his concurring opinion, Thomas makes clear Smith’s appointment deserves examination on its legal merits.
“Whether the Special Counsel’s office was ‘established by Law’ is not a trifling technicality,” he writes. “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.”
Garland, when testifying before Congress, has largely dodged questions of why he took the legally risky decision to appoint Smith, who has a history of botching prosecutions of leading political figures and a reputation for a willingness to use broadly worded federal statutes and legally radical interpretations of the law to take out his prosecutorial targets.
The timeline of his decision, and other actions taken by the White House, could shed light on Garland’s reasoning.
The same day Garland appointed Smith to revitalize DOJ’s cases against Trump in Washington and Florida, Fulton County assistant prosecutor Nathan Wade spent an astonishing eight hours in the White House counsel’s office on official business related to his role prosecuting Trump, and Biden’s third-ranking official at DOJ resigned to take a much lower profile assistant prosecutor role in Manhattan District Attorney Alvin Bragg’s office.
As Breitbart News has exposed, that date, November 18, 2022, came only nine days after Biden vowed in a White House press conference to pursue measures beyond the ballot box to prevent former President Donald Trump’s reelection.
The case decided Monday is Trump v. United States, No. 23-939 in the Supreme Court of the United States. The case before Cannon is United States v. Trump, 9:23-cr-80101, in the U.S. District Court for the Southern District of Florida.
Bradley Jaye is a Capitol Hill Correspondent for Breitbart News. Follow him on X/Twitter at @BradleyAJaye.
