In Monday’s landmark Supreme Court ruling on presidential immunity, Justice Clarence Thomas raised the secondary issue regarding the constitutionality of Jack Smith‘s appointment as a special prosecutor for Joe Biden’s Department of Justice (DOJ). Smith is currently overseeing two separate prosecutions targeting former President Donald J. Trump, the presumptive 2024 Republican presidential nominee and currently favored to defeat Biden in November’s election.
“In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States,” Justice Thomas wrote in his concurring opinion. He continued: “But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
At the heart of Justice Thomas‘s argument is that Article II of the U.S. Constitution specifically grants the power to create inferior offices in the executive branch not to the President but to Congress. He contends that without legislative authorization, Attorney General Merrick Garland‘s appointment of a Special Counsel is unconstitutional.
Justice Thomas quotes the Appointments Clause in his concurring opinion on presidential immunity (pg. 53).
“By requiring that Congress create federal offices ‘by Law,’ the Constitution imposes an important check against the President—he cannot create offices at his pleasure,” the justice wrote, adding: ” 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.” (Read more: The National Pulse, 7/01/2024) (Archive)