Justice Thomas Questions Legality of Jack Smith’s Appointment

Justice Clarence Thomas expressed in a concurring opinion that the appointment of Special Counsel Jack Smith could be unconstitutional, highlighting concerns regarding Smith’s authority and the existence of the appointed office.

Thomas questioned if Smith’s appointment violated the Appointments Clause, emphasizing the need for clarity on these constitutional issues before legal proceedings can continue.

“Those questions must be answered before this prosecution can proceed,” Thomas wrote. “We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”

He discussed the historical significance of the separation of powers and underlined the necessity of adhering to constitutional principles.

“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.” Thomas wrote. “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.”

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas added.

“By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters,” he wrote. “Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.”

“It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution.”

He added, “When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have. Instead, the Attorney General relied upon several statutes of a general nature.”

He wrote, “To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.”

“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. 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.’ 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.'”

“Whether the Special Counsel’s office was ‘established by Law’ is not a trifling technicality,” Thomas wrote. “If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office.”

The opinion could influence Judge Aileen Cannon’s ruling on the legality of Smith’s appointment, potentially impacting the ongoing cases involving former President Donald Trump.