Associate Justice Clarence Thomas questioned whether special counsel Jack Smith’s appointment would stand up to constitutional muster Monday in a concurring opinion to the Supreme Court’s decision on presidential immunity.
The high court ruled in favor of former President Donald Trump’s claims of immunity for “official acts” in a case stemming from an indictment secured by Smith over his efforts to contest the 2020 election. In an opinion concurring with the decision written by Chief Justice John Roberts, Thomas took aim at the appointment of Smith, citing provisions of Article II of the Constitution.
“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.”
Supreme Court Rules Trump Has Immunity For ‘Official Acts’ In Appeal https://t.co/AnkOBANGjK
— Daily Caller (@DailyCaller) July 1, 2024
“By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure,” Thomas continued. “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”
Attorney General Merrick Garland appointed Smith to oversee allegations surrounding the retention of classified material by Trump and the former president’s alleged involvement in trying to overturn the 2020 election results. Smith eventually charged Trump with “conspiring to defraud the United States, conspiring to disenfranchise voters, and conspiring and attempting to obstruct an official proceeding.”
United States District Judge Aileen Cannon of the Southern District of Florida heard arguments about the constitutionality of Smith’s appointment in June.
“Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be,” Thomas wrote. “Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if ‘Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.’ So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.’”
“Whether the Special Counsel’s office was ‘established by Law’ is not a trifling technicality,” Thomas continued. “If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office.”
The Department of Justice didn’t immediately respond to the Daily Caller News Foundation’s request for comment.
All republished articles must include our logo, our reporter’s byline, and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.
DONATE TO BIZPAC REVIEW
Please help us! If you are fed up with letting radical big tech execs, phony fact-checkers, tyrannical liberals and a lying mainstream media have unprecedented power over your news please consider making a donation to BPR to help us fight them. Now is the time. Truth has never been more critical!
- Police chief who groveled after discussing ‘East African crime’ panders to Somalis again - December 17, 2025
- Ilhan Omar whines about ICE operations in Minneapolis - December 17, 2025
- ‘It’s all bullsh*t’: Tim Walz goes on anti-Second Amendment rant - December 17, 2025
Comment
We have no tolerance for comments containing violence, racism, profanity, vulgarity, doxing, or discourteous behavior. Thank you for partnering with us to maintain fruitful conversation.
BPR INSIDER COMMENTS
Scroll down for non-member comments or join our insider conversations by becoming a member. We'd love to have you!
