Clarence Thomas slams special counsel Jack Smith’s nomination

In a landmark Supreme Court decision on former President Trump’s immunity, one justice questioned whether special counsel Jack Smith, who presided over Trump’s unprecedented trial, was constitutionally appointed.

On Monday, a 6-3 majority of the justices ruled that the president is entitled to substantial immunity for official actions taken in office and sent the case back to lower courts to determine which of the actions at issue in Trump’s lawsuit were official in nature.

“The president is not above the law. But Congress cannot criminalize the president’s conduct in the performance of his executive branch duties under the Constitution. And the system of separated powers designed by the framers of the Constitution always required a vigorous, independent executive branch,” the opinion said.

In a separate opinion accompanying the case, Justice Clarence Thomas sought to “highlight another way in which this proceeding may violate our constitutional structure” — the appointment of Jack Smith as special counsel.

“There has been much discussion in this case about ensuring that the president is ‘not above the law.’ However, as the Court explains, the president’s immunity from prosecution for his official actions Is law. The Constitution provides for a ‘vigorous executive’ because such executive power is ‘necessary to the…security of liberty,’” Thomas wrote.

“Upholding the protections that the Constitution provides for the Office of the President protects liberty. In the same vein, the Constitution also protects liberty by allocating the power to create and fill offices. And there are serious questions about whether the Attorney General violated that structure by creating the office of Special Prosecutor, which was not established by law,” Thomas said, adding that “

Thomas explained that in this case, the attorney general “purportedly appointed a private citizen to serve as special prosecutor to prosecute the former president on behalf of the United States.”

“If there is no law governing the function of the Special Prosecutor, then he cannot continue with these proceedings,” he said.

“But I am not certain that any office of Special Counsel has been ‘established by law,’ as the Constitution requires. By requiring Congress to create federal offices ‘by law,’ the Constitution places an important check on the President—he cannot create offices at his own discretion,” he said.

Thomas added that “a private citizen cannot prosecute anyone, let alone a former president.”

Thomas noted that “no former president has faced criminal prosecution for his actions while in office in the more than 200 years since our country’s founding. This is despite many former presidents taking actions that many would consider criminal. If this unprecedented prosecution is to take place, it must be carried out by someone duly authorized by the American people.”

The question of what immunity should be granted to Trump and future presidents arose from Smith’s federal election interference case, in which he charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstructing and attempting to obstruct an official proceeding, and conspiracy to violate the law.

The charges were the result of Smith’s months-long investigation into whether Trump was involved in the Jan. 6, 2021, riot at the Capitol and any alleged interference with the 2020 election results. Trump has pleaded not guilty to all charges and has argued that he should be protected from prosecution for official actions he took as president.

In an amicus curiae brief filed with the Supreme Court in the case, Ed Meese, Solicitor General under President Ronald Reagan, argued that the court should deny the request of Special Counsel Jack Smith because his appointment to the position was unconstitutional.

“Unclad by the authority of the federal government, Smith could be viewed as a modern-day example of the naked emperor,” the letter stated.

“Improperly appointed, he has no greater authority to represent the United States on this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” he argued.

Merrick Garland cited statutory provisions to justify Smith’s appointment, none of which, Meese argued, “in any way authorized the appointment by the Attorney General of a private individual to receive extraordinary criminal enforcement powers under the title of Special Counsel.”

Thomas acknowledged this argument in his opinion, saying, “It is difficult to understand how the Special Counsel has an office ‘established by law,’ as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not point to any statute that expressly creates such an office.”

Meese also argued that “even if we ignore the lack of statutory authority to create such a position, there is no statute that expressly authorizes the Attorney General, rather than the President, with the advice and consent of the Senate, to appoint such a Special Prosecutor.”

“Under the Appointments Clause, lower-level officers may be appointed by department heads only when Congress so directs by statute … and so directs in sufficient detail to overcome the presumption of a clear statement in favor of presidential nomination and senatorial confirmation. There is no such statute for the Special Counsel,” he added.

Thomas made a similar argument on Friday.

“Even if the Special Prosecutor holds an important position, questions remain as to whether the Attorney General filled that position in accordance with the Appointments Clause,” he said.

“For example, it must be determined whether the Special Counsel is a principal or junior official. If the former, his nomination is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as must be the case for principal officials,” he said.

“These questions must be answered before criminal proceedings can continue,” he added.

“We must respect the constitutional principle of separation of powers in all its forms, otherwise we risk that the protection of freedom will become a mere parchment guarantee,” he concluded.