Justice Thomas just gifted Judge Cannon a reason to blow up Trump's Mar-a-Lago prosecution, another bad sign for Jack Smith

Donald Trump (AP Photo/Julia Nikhinson, Pool); U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021 in Washington, D.C. (Photo by Drew Angerer/Getty Images).

The Supreme Court of the United States capped off a blockbuster run of opinions by ultimately handing Donald Trump a win in his Jan. 6 prosecution , dragging out proceedings by forcing the Washington, D.C., trial court to analyze which alleged acts in his indictment were “official” and which were “unofficial,” only the latter of which would afford him “no immunity” from prosecution. Still, legal experts believe the ruling all but guarantees there will be no trial before the 2024 election , throwing a major wrench into special counsel Jack Smith’s case and clouding it with uncertainty.

In a concurrence, which no other justice joined, Justice Clarence Thomas went a step further by strongly suggesting it his view that Jack Smith was unlawfully appointed as special counsel, giving Trump legal ammunition in undoing his Mar-a-Lago prosecution, where U.S. District Judge Aileen Cannon recently permitted pro-Trump amici curiae (Latin for friends of the court) to argue some of the very points Thomas made on Monday.

Some quick background: Trump’s defense lawyers, among their numerous motions to dismiss the Espionage Act case, have argued that Smith’s appointment by U.S. Attorney General Merrick Garland violated the Constitution because Smith was a “private citizen ” DOJ alum at the time of his appointment, not a Senate-confirmed U.S. attorney like special counsel David Weiss of Hunter Biden’s prosecutions .

The amici — including George W. Bush administration Attorney General Michael Mukasey, Ronald Reagan administration Attorney General Edwin Meese III, Federalist Society co-founder and Northwestern University law professor Steven Calabresi, and Boston University law professor Gary Lawson — were represented in court by former Antonin Scalia clerk Gene Schaerr.

“In short, the idea of a chief prosecutor not authorized by a clear statutory provision or with the approval of the Senate is a jurisprudential dinosaur, and should be declared extinct,” their brief argued .

The amici in early June had highlighted a question that Thomas asked during Trump immunity oral arguments as a “good reason to believe the Supreme Court will take a keen interest” in how Cannon will rule on the lawfulness of Smith’s appointment.

“Did you, in this litigation, challenge the appointment of special counsel?” Thomas asked during the argument.

“Trump’s counsel responded in relevant part, ‘We have done so in the Southern District of Florida case, and we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey,'” the amici recounted in a filing of their own.

What Thomas’ concurrence said

Thomas, who is the justice assigned to field emergency applications from the U.S. Court of Appeals for the 11th Circuit, which includes Cannon’s jurisdiction, has definitively removed any doubt about his degree of interest in the question of the constitutionality of Smith’s appointment.

For Thomas, the attempted prosecution of Trump for official acts “threaten our constitutional order,” but also of concern was the appointment of “private citizen” Smith to embark on that mission.

“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,” Thomas wrote of the Jan. 6 case, before urging the “lower courts” to answer whether non-Senate-approved Smith was lawfully appointed at all.

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

While Smith has stated that the arguments raised by Trump and the amici curiae were “meritless” — as the special counsel is an “inferior officer” who doesn’t need to be confirmed by the Senate (unlike a “principal officer”), who still answers to AG Garland, who remains under Garland’s “plenary supervision” and who can be removed from his role — Thomas doesn’t agree that this is an open-shut constitutional question.

“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 said. “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. 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.”

In other words, in Thomas’ view, Jack Smith’s appointment could very well crumble whether he is an “inferior” or a “principal” officer under the Constitution.

“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,'” he added, dismissing the statutory authorities Garland cited in his appointment order for Smith as insufficient: “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 that this is no “trifling technicality,” either.

“Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is ‘the absolutely central guarantee of a just Government’ and the liberty that it secures for us all,” he concluded. “There is no prosecution that can justify imperiling it.”

Cannon has not yet ruled on Trump’s challenge of Jack Smith’s authority to prosecute, but it’s worth watching how much of Thomas’ concurrence features in the eventual ruling.

The post Justice Thomas just gifted Judge Cannon a reason to blow up Trump’s Mar-a-Lago prosecution, another bad sign for Jack Smith first appeared on Law & Crime .