Justice Clarence Thomas on Monday raised bold questions about the constitutionality of Jack Smith 's appointment as special counsel to prosecute the 2020 election interference case against former President Donald Trump , a question closely tied to a pending dispute in his Florida case.
The Supreme Court issued a 6-3 decision in favor of Trump's bid to claim immunity for "official acts" in a case stemming from Smith's four-count indictment against the former president related to his conduct around the time of the Jan. 6, 2021, riot at the Capitol. In an opinion concurring with Chief Justice John Roberts 's majority decision, Thomas queried whether Smith was legally appointed by Attorney General Merrick Garland .
Thomas, who was nominated by President George H.W. Bush 33 years ago this week, wrote that Smith was not a Senate-confirmed U.S. attorney, which could undermine Smith’s prosecutions, including in the Mar-a-Lago case over classified documents.
“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,” Thomas wrote. “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."
Trump’s defense lawyers have argued that Smith’s appointment violated the Constitution because Smith was a "private citizen" and not confirmed by the Senate. This argument is supported by pro-Trump amici curiae in Trump's classified documents case in Florida, where U.S. District Judge Aileen Cannon is considering whether Smith was lawfully appointed.
In early June, the amici led in part by former attorneys general under George W. Bush's and Ronald Reagan's administrations highlighted the issue that Thomas raised in his concurrence on Monday.
The amici pointed out that the 1974 Supreme Court decision known as "U.S. v. Nixon briefly mentioned that the Attorney General had appointed a special prosecutor in that case, and the Court did not indicate disapproval of that method of appointment," according to the amici, which includes former attorneys general Michael Mukasey and Edwin Meese III.
"Suffice it to say that, today, the Supreme Court takes the Appointments Clause far more seriously than it did in 1974," the amici added.
In his concurrence, Thomas also questioned whether Smith’s role as an “inferior” or “principal” officer was constitutionally valid and urged lower courts to address this issue before the prosecution proceeds. Thomas emphasized the importance of resolving the constitutionality of Smith’s appointment.
"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 said.
"Congress gave the Attorney General the power to appoint 'additional officers ... as he deems necessary' — but, only for the Bureau of Prisons," Thomas added, a suggestion that perhaps Congress may need to designate specific authority to create offices for special counsels.
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Thomas’s concurrence adds significant weight to the debate over Smith’s appointment, potentially affecting the prosecutor’s future. It signals to Cannon that at least one justice on the high court would be willing to entertain the dilemma concerning the constitutionality of Smith's office.
Cannon has yet to rule on Trump’s challenge to Smith’s authority.
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