What Supreme Court Justice Clarence Thomas Has to Say About Trump v. United States

JUDGE THOMAS, agreeing.

Few things would be more dangerous to our constitutional order than the criminal prosecution of a former president for his official acts. Fortunately, the Constitution forbids us from charting such a dangerous course. As the Court forcefully explains, the Framers “recognized a vigorous executive power as essential to the . . . security of liberty,” and our “system of separated powers” ​​adequately protects the president from prosecution for his official acts. Ante, pp. 10, 42 (internal quotation marks omitted). A different conclusion would paralyze the vigorous executive power our Constitution envisions. “While the separation of powers may prevent us from righting every wrong, it does so to insure that liberty shall not be lost.” Morrison v. Olson, 487 U.S. 654, 710–711 (1988) (Scalia, Justice, dissenting).

I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purportedly appointed a private citizen as Special Prosecutor to prosecute a former President on behalf of the United States. But I am not certain that any office of Special Prosecutor has been “established by operation of law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring Congress to create federal offices “by operation of law,” the Constitution places an important check on the President—he cannot create offices at his own discretion. If there is no law creating the office that the Special Prosecutor holds, he cannot continue to prosecute. A private citizen cannot criminally prosecute anyone, much less a former President.

No former president has faced criminal charges for his actions while in office in the more than 200 years since our country was founded. This is despite many former presidents taking actions that many would consider criminal. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized by the American people. The lower courts should therefore answer these fundamental questions about the appointment of the Special Prosecutor before proceeding.