Justice Clarence Thomas: Special Counsel Appointment ‘Unconstitutional’

(ConservativeSense.com) – The US Supreme Court just made a landmark decision on presidential immunity, declaring that presidents could not be prosecuted for “official acts” while in office, but one justice raised a secondary concern about the constitutionality of the special counsel leading two prosecutions of former President Donald Trump.

During the landmark ruling on Monday, July 1, Justice Clarence Thomas brought up another concern regarding Special Counsel Jack Smith and whether or not he was constitutionally appointed to lead the ongoing cases against Trump by the US Department of Justice (DOJ).

In the opinion accompanying the ruling, Thomas questioned the legitimacy of Attorney General Merrick Garland’s appointment of Smith, “a private citizen,” to serve as Special Counsel in the prosecution “of a former president” on behalf of the nation. He noted that he wasn’t sure if “any office for the Special Counsel” was constitutionally established by law.

In Article II of the Constitution, the power to create an inferior office in the Executive Branch is granted to Congress rather than the president, meaning the Biden administration’s appointment of Smith may be unconstitutional because it lacked legislative authorization. The framing of the Constitution requiring Congress to create federal offices “imposes an important check” against the Executive Branch, meaning the president can’t “create offices at his pleasure.”

Thomas argues that if no law exists to establish the Special Counsel’s office, then Smith can’t move forward prosecuting a president as a private citizen, who the justice says cannot technically “prosecute anyone.”

Thomas isn’t the first justice to raise such contentions. Justice Brett Kavanaugh noted the violation of Article II when Smith was appointed as a private citizen without confirmation by the Senate, specifically the Appointments Clause.

The additional opinion may represent a second victory for Trump, who now has presidential immunity for officials actions taken while he was in office, which could result in several charges against him being dropped in the cases by Smith. Now, it seems that Smith himself is also at risk of being dropped from his own cases.