Justice Clarence Thomas joined the Supreme Court ’s five other conservatives to grant Donald Trump and other presidents unprecedented immunity from criminal prosecution .
But he also wrote his own opinion taking aim at the special counsel handling the election interference case at the center of the ruling – days after Trump’s attorneys made the same arguments in a Florida courtroom .
Thomas went so far as to say that the federal judge overseeing Trump’s election interference case should reconsider whether Jack Smith was even lawfully appointed to the job, giving Trump and the judge presiding over Trump’s classified documents case more legal ammunition in his favor.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Justice Thomas wrote . “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Over seven pages, he goes on to argue against the appointment of special counsels, laying the groundwork for more challenges to Smith’s authority while Trump and his allies undermine his office in court and in Congress.
In two days of hearings in the Mar-a-Lago case last month, Trump’s attorneys and allies argued that Smith was unconstitutionally appointed and that his office is unlawfully funded.
In a rare move, Judge Aileen Cannon – the Trump-appointed judge overseeing the Mar-a-Lago case – allowed nonparties in the case to argue on Trump’s behalf, including attorneys with right-wing legal groups.
The groups claimed that the Supreme Court “will take a keen interest” in the judge’s decision, signaling that a challenge at the nation’s highest court could follow, further prolonging a trial over Trump’s allegedly unlawful retention of classified materials at his Mar-a-Lago compound.
As evidence, they pointed to questions from Justice Thomas during oral arguments in Trump’s immunity case.
“Did you, in this litigation, challenge the appointment of special counsel?” Thomas asked during the oral arguments in April.
Thomas – writing for himself, in an opinion that wasn’t joined by any other justices – argued that there are “serious questions” whether Attorney General Merrick Garland violated the separation of powers by “creating an office of the Special Counsel that has not been established by law.”
“Those questions must be answered before this prosecution can proceed,” he added. “We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”
In court filings, attorneys with the special counsel’s office have called arguments from Trump’s team “unsound.” The attorney general “has exclusive authority (except as otherwise provided by law) to direct ‘the conduct of litigation’ on behalf of the United States,” they wrote.
“The Special Counsel’s investigation is lawfully funded through an appropriation that has been used repeatedly to pay similar special and independent counsels,” according to prosecutors, “and the lawfulness of this practice is confirmed by statutory text, history, and longstanding practice (including funding for a special counsel appointed during Trump’s administration).”
The Supreme Court’s decision on whether Trump is immune from some criminal prosecution will likely continue to delay a trial on charges surrounding his attempts to overturn the 2020 presidential election.
Trump also faces 40 separate charges stemming from allegations that he withheld hundreds of classified documents after leaving the White House for his private Mar-a-Lago compound in Florida, then conspired to obstruct government attempts to retrieve them.
He has pleaded not guilty.
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