Clarence Thomas says Jack Smith's appointment as special counsel was unlawful

 July 3, 2024

The Supreme Court made headlines this week when it ruled that a president's official actions enjoy a high degree of immunity from prosecution.

Yet as Fox News noted, less attention was paid to a concurrence in which Justice Clarence Thomas suggested that Special Counsel Jack Smith's appointment was unlawful.

Thomas calls out Trump's "unprecedented prosecution"

"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," Thomas wrote.

"If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," the justice noted.

"The lower courts should thus answer these essential questions concerning the special counsel's appointment before proceeding," he continued.

"Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts," Thomas declared.

"Fortunately, the Constitution does not permit us to chart such a dangerous course," he asserted and then went to question the legitimacy of Smith's appointment.

Justice says special counsel's office not "establish by Law"

Thomas explained that he wrote a separate concurrence "to highlight another way in which this prosecution may violate our constitutional structure."

"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," Thomas asserted

He pointed out how "[b]efore the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be 'established by Law.'"

"The Constitution itself creates some offices, most obviously that of the President and Vice President. Although the Constitution contemplates that there will be 'other Officers of the United States, whose Appointments are not herein otherwise provided for,' it clearly requires that those offices 'shall be established by Law," Thomas stated.

Thomas echoes arguments from former Reagan attorney general

"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 wrote as he drew to a close.

Thomas' remarks echo the arguments put forward in an amicus brief submitted last year by Ed Meeser, who served as attorney general under President Ronald Reagan.

"Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," Fox News quoted the brief as stating.

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