In a cooperating opinion, Supreme Court Justice Clarence Thomas questioned whether Special Counsel Jack Smith’s business and appointment are legal in the first place. In a concurring opinion, Justice Thomas argued that presidents have “at least presumptive resistance” for established acts.
In a 6- 3 determination on Monday, the Supreme Court ruled presidents have “absolute resistance” for “actions within his convincing and preclusive legal power” and “at least presumptive resistance” for all “official acts”.
The solicitor general Merrick Garland appointed Smith as attorney general after he was charged with questioning past president Donald Trump over his role in the 2020 election. Additionally, the Supreme Court sent up several of Smith’s alleged actions to the lower court to check whether they were official acts, about certainly stifling Smith’s desire for a preelection trial.
Thomas, in his consent, spent little time reinforcing the court’s judgment and rather explained he wrote” to show another way in which this trial may offend our constitutional framework”.
Thomas noted that he is” not certain that any business for the Special Counsel has been “established by Law” as the Constitution requires and that Garland’s session of Smith to punish Trump may have been unlawful.
” The Special Guidance cannot deal with this prosecution if there is no legislation establishing the business that he occupies.” A personal citizen may illegally sue people, let alone a former President”, Thomas opined. ” This unprecedented prosecution may be conducted by someone with the necessary authority from the National people,” the statement reads. Therefore, before proceeding, the lower judges may respond to these crucial inquiries regarding the appointment of the Special Counsel.
Thomas explained that while the Constitution allows” Heads of Department” to appoint superior soldiers, it also mandates that the appointed business be “established by Law” like Garland does. Thomas claims Garland “did not discover any statute that obviously creates such an office” when appointing Smith to specific counsel, Garland just cited public statutes, “none” of which “appears to produce an office” for Smith.
But even if the office itself is constitutional, Thomas argues that Smith’s appointment may not be. According to Thomas, whether a principal or an inferior officer is required to be chosen for the special counsel position. A principal officer needs to be confirmed by the Senate and be nominated by the president, 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 cited the founders to explain why Garland and the executive branch have a limited authority to create and fill positions.
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 significance that the Constitution places on the creation of a federal office,” Thomas continued. The Founders demanded that a federal office be “established by law” in order to protect against tyranny.
” 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 Smith v. Smith case against Trump regarding whether Smith’s appointment was unlawful. Ed Meese, a constitutional expert and former attorney general under Ronald Reagan, filed a brief in opposition to Smith’s appointment, which violated the Appointments Clause.
The Federalist’s Brianna Lyman is a correspondent for elections.
