Justice Thomas Appears To Take Aim At Jack Smith’s Appointment

In a landmark decision on presidential immunity, conservative U.S. Supreme Court Justice Clarence Thomas indicated that former President Donald Trump might have grounds to dismiss Jack Smith from his ongoing federal cases. Thomas, in a concurring opinion, raised questions about the legal basis for Smith’s appointment to prosecute Trump, as reported by the New York Times. This development could bolster Trump’s defense team, which has already sought to dismiss Smith in the classified documents case. The issue of the extent of presidential immunity is now set to be further explored in the lower courts.

Thomas requested that lower courts should explore essential questions regarding the special counsel’s appointment without mentioning U.S. District Judge Aileen Cannon by name. He added that if U.S. Attorney General Merrick Garland’s appointment was found to be illegal, there should be consequences. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote on Monday. “A private citizen cannot criminally prosecute anyone, let alone a former president.”

Smith has expressed his frustration with Judge Cannon, particularly for her criticism of excessive redactions in evidence against Trump, which she ordered to be disclosed. In April, Smith pressured Cannon to quickly decide on jury instructions favorable to his case or risk an immediate appeal.

Trump’s legal team has challenged Smith’s authority, arguing that his appointment should have been confirmed by the Senate due to his role in overseeing cases concerning classified documents and the January 6th Capitol riots. Smith has responded by citing the appointments clause of the Constitution, which he claims allows the U.S. attorney general to appoint “inferior officers” such as himself. But Thomas dismissed that argument, noting in his opinion that it’s questionable whether a special counsel would qualify as an “inferior officer… unless a statute created the special counsel’s office and gave the attorney general the power to fill it.”

In its 6-3 ruling handed down on Monday, the nation’s highest court ruled that a former president has absolute immunity for his core constitutional powers. Former presidents are also entitled to at least a presumption of immunity for their official acts, the court said, adding that there is no immunity protection in the Constitution for unofficial acts.

The case relates to former President Donald Trump’s claims of immunity for acts he performed while president in regards to the Jan. 6 “election interference” case filed against him in the D.C. district court last year. In Part III of its opinion, the court indicated that in this case, “no court has thus far considered how” to distinguish between official and unofficial acts. This ruling now puts all of these charges filed against Trump at risk of being dismissed.

Moreover, Chief Justice John Roberts, who wrote the majority opinion, continues, “The lower courts rendered their decisions on a highly expedited basis” and “did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial” — and it wasn’t briefed before the Supreme Court. So the Court isn’t going to make that determination now. Instead, it will send the case back to the lower courts for further proceedings, although it does offer some guidance, SCOTUS Blog reported.

“Certain allegations–such as those involving Trump’s discussions with the Acting Attorney General–are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations–such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public–present more difficult questions,” Roberts continued. “Trump is … absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

The court sent the case back to the district court for it to determine other things, such as “whether a prosecution involving Trump’s attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.” He added, however, that “Trump asserts a far broader immunity than the limited one we have recognized.”