In an awesome, nine-page concurrence released on Monday, July 1, Supreme Court Justice Clarence Thomas indicated that he thinks the appointment of Special Counsel Jack Smith was unconstitutional, and so both the office are invalid and Special Counsel Smith cannot legally hold it. While just a theory and opinion, the concurrence could lay out a roadmap for taking down Smith.
The concurrence Thomas wrote came as part of the Monday SCOTUS decision on presidential immunity. In that decision, the court found that the president has immunity for official actions. Defining “official,” the court ruled, “In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.”
Continuing, it described why Trump’s conduct was official, ruling, “The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
Then, explaining that Trump was acting in an official capacity and thus protected by immunity, SCOTUS provided, “The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.”
While that was already a win for Trump, Justice Thomas built it into an even bigger one with his concurrence. In that concurrence, he argued that Special Counsel Smith’s appointment could violate the Constitution’s Appointments Clause. He added that there is another constitutional issue, as “any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
He added that he sees those questions about the Constitutionality of Smith’s appointment as needing to be answered before Smith can proceed with his case about Trump, saying, “Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”
That came after Justice Thomas introduced his Constitutional questions by noting the immense importance of the matter, writing, “Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course.”
Similarly, he noted, “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. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Watch Rep. Massie comment on the legality of Smith’s appointment here:
Featured image credit: By United States Department of Justice – This file has been extracted from another file, Public Domain, https://commons.wikimedia.org/w/index.php?curid=132849708
"*" indicates required fields