After Supreme Court Chief Justice John Roberts vacated the special counsel’s attack on presidential immunity, avoiding a constitutional crisis, he sent it back to the same appeals court judges who got it all wrong in the first place, and Justice Clarence Thomas weighed in. Taking his verbal sniper rifle, Thomas sighted in the foundational legality of the special counsel’s office and took what he hoped would be a kill shot.
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Besides rendering the D.C. January 6 case against Donald Trump legally inert, the immunity decision is a win for Trump in the lawfare operation being run against him in Georgia and New York. Thomas’s concurrence also provides legal firepower to Trump’s argument before Florida federal Judge Aileen Cannon that Jack Smith’s appointment as special counsel is illegal.
“In this case, there has been much discussion about ensuring that a President ‘is not above the law,'” he wrote in his opinion, which concurred with the 6-3 majority upholding presidential immunity. “But,” he continued, “as the Court explains, the President’s immunity from prosecution for his official acts is the law.”
And then Thomas began a multi-page dismantling of the legality of the special counsel’s office. It was a “Gee since we’re talking about that whole being-above-the-law argument, let’s talk about the legality of the special counsel’s office” moment.
“I write separately to highlight another way in which this prosecution may violate our constitutional structure,” Thomas wrote.
“In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires,” he added, citing generalized case law that Attorney General Merrick Garland said supported his decision to appoint Smith.
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But Thomas slapped it down. Smith did not work under the imprimatur of the Department of Justice when he took the job as special counsel. Thomas wrote, “A private citizen cannot criminally prosecute anyone, let alone a former President. No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country.”
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas explained. “The lower courts [New York, Georgia, D.C. Circuit, Florida] should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
He lectured, “None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.”
Thomas continued, “Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”
He also noted, “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. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist” [emphasis added].
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Thomas’s concurrence isn’t binding, but it’s like a boss giving you a piece of advice on how to do your job.
The head of Merrick Garland’s federal “Get Trump Wet Work” team, Jack Smith, is already on tenuous ground. He has tossed out norm after legal norm in raiding former President Trump’s home, piercing Trump’s attorney-client privilege, working with local and state government lawyers to form the lawfare strategy against the former president, and then fighting the long-held notion that this former president enjoys immunity from prosecution for his actions as president. There is also the troubling question of whether Jack Smith’s appointment to be special counsel is even legal.
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Monday’s decision avoided the constitutional crisis that Jack Smith so wildly and recklessly drove this country into.
He should be fired immediately.