Supreme Court Justice Clarence Thomas questioned, in a concurring opinion affirming presidents have “at least presumptive immunity” for official acts, whether Special Counsel Jack Smith’s office and appointment are constitutional in the first place.
In a 6-3 decision on Monday, the Supreme Court ruled presidents have “absolute immunity” for “actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for all “official acts.”
The decision came after Smith, who was appointed by Attorney General Merrick Garland, indicted former President Donald Trump for questioning the administration of the 2020 election. The Supreme Court also sent several of the alleged actions in Smith’s case against Trump back to the lower court to determine whether they constituted official acts — almost certainly quashing Smith’s hopes for a preelection trial.
Thomas, in his concurrence, spent little time reinforcing the majority’s opinion and instead explained he wrote “to highlight another way in which this prosecution may violate our constitutional structure.”
Thomas explained that Garland’s appointment of Smith to prosecute Trump may have been unconstitutional, noting he is “not sure that any office for the Special Counsel has been ‘established by Law’ as the Constitution requires.”
“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 opined. “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.”
Thomas explained that while the Constitution permits “Heads of Department” — like Garland — to appoint inferior officers, it also requires the appointed office be “established by Law.” Thomas claims Garland “did not identify any statute that clearly creates such an office” when appointing Smith to special counsel; Garland simply cited general statutes, “none” of which “appears to create an office” for Smith.
But even if the office itself is constitutional, Thomas argues that Smith’s appointment may not be. Thomas says it must be determined whether the special counsel role is a principal or inferior officer. A principal officer requires a nomination by the president and confirmation by the Senate — which Smith did not receive. Thomas argues an inferior officer does not require 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,'” Thomas argues.
Thomas also invoked the founders to explain why Garland and the executive branch’s authority to create and fill roles is limited.
The founders, weary of a power-hungry monarch that could — as the king did — both create positions and then fill those positions to carry out partisan objectives, “broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices,” Thomas explained.
“We cannot ignore the importance that the Constitution places on who creates a federal office,” Thomas continued. “To guard against tyranny, the Founders required that a federal office be ‘established by Law.'”
“As James Madison cautioned,” Thomas continued, “‘[I]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.'”
Thomas’ reasoning, while not legally binding, may have significant implications in Donald Trump’s defense against the Biden Justice Department’s lawfare in Florida. Judge Aileen Cannon recently heard arguments in the classified document case against Trump — also brought by Smith — as to whether Smith’s appointment was unlawful. Constitutional expert and former attorney general under President Ronald Reagan, Ed Meese, filed an amicus brief arguing Smith’s appointment violates the Appointments Clause.
