Clarence Thomas questions Jack Smith's authority

 July 2, 2024

The Supreme Court's historic immunity ruling on Monday has forced Democrats to face a sobering reality: Donald Trump likely won't be prosecuted over January 6th.

While the court's majority opinion received the most publicity, conservative stalwart Clarence Thomas opened the door to disqualifying prosecutor Jack Smith in a separate concurring opinion. 

With characteristic boldness, Thomas sharply questioned the legal basis for a private citizen like Smith to prosecute an American president.

Justice Thomas targets Jack Smith

Thomas applauded the majority's ruling, which held that presidents enjoy immunity from criminal prosecution for their official acts. Thomas agreed that such immunity is necessary to protect the Founders' vision of an independent and energetic presidency.

"To conclude otherwise would hamstring the vigorous Executive that our Constitution envisions," Thomas wrote.

Thomas then extended the court's separation of powers analysis to critique Smith's appointment by attorney general Merrick Garland.

The contours of Thomas' argument echoed former Ronald Reagan attorney general Edward Meese, who has argued Smith is the proverbial emperor with no clothes.

Thomas was skeptical of the "generic" laws that Garland cited to justify Smith's office of Special Counsel. Thomas was also skeptical of the manner of Smith's appointment. Smith was handpicked by Garland directly, rather than nominated by the president and confirmed by the Senate.

"If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot prosecute anyone, let alone a former President," Thomas wrote.

Prosecution in jeopardy

Thomas emphasized the unprecedented nature of Smith's case, which was brought "despite numerous past Presidents taking actions that many would argue constitute crimes."

The justice urged the lower courts to scrutinize Smith's appointment further before he proceeds.

"If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," Thomas wrote. "The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding."

Smith is behind two federal prosecutions of Trump. In addition to the January 6th case, he is prosecuting Trump over classified documents in Florida.

Thomas' rebuke of Jack Smith is the least of the prosecutor's problems. Even if he is not disqualified, he is running out of time to prosecute Trump before the presidential election.

The Supreme Court's ruling on immunity makes it even harder for Smith to meet his political timetable.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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