Justice Clarence Thomas stunned the ruling regime in one of its most considerable cases when it came to the end of a major Supreme Court term to defend its divisive law-enforcement indictment of Donald Trump.
Thomas questioned whether the Biden Justice Department’s trial of Trump itself was legitimate in the location Trump v. United States circumstance, as opposed to affirming the public’s view regarding former senator Trump’s immunity from prosecution.
” In this case, there has been much debate about ensuring that a President ‘ is hardly above the legislation,'” Thomas wrote. ” But, as the Court explains, the President’s immunity from prosecution for his standard works is the law”.
By comparison, the associate fairness asserted,” I am never convinced that any business for the Special Counsel has been’ established by Law,’ as the Constitution requires”.
If this extraordinary prosecutors is to resume, it must be conducted by a person who has the necessary authority, according to Thomas.
Thomas wants the lower authorities to consider whether or not Special Counsel Jack Smith is actually “duly authorized.”
Under the Constitution’s appointment section, which is key to ensuring the separation of powers, Congress creates headquarters, and either president fill them with the advice and consent of the Senate or, if Congress members them the power, the chairman,” Courts of Law”, or” Eyes of Sections” may appoint “inferior officers”.
This represented a tear from and corrective to the British king, under which, as Thomas recounts, quoting the Declaration of Independence, the prince had “erected a multitude of New Offices, and sent hither flocks of Soldiers to abuse our people and take out their material”.
Thomas argues persuasively that Special Counsel Jack Smith’s department was not created by Congress. Even if it did, he asserts, Smith may also not been freely appointed to it. Generally, the legislative tree has created special and separate judges by statute. Certainly in the case of Special Counsel Smith. Attorney General Merrick Garland failed to identify any act” that evidently creates” Smith’s business.
He did count on” several statutes of a standard nature” to defend Smith’s visit, per the agreement. But, Thomas found Garland’s usage of 28 U. S. C. §509, 510, 515, 533 to support that appointment to be controversial.
Sections 509 and 510, Thomas notes, cope with the attorney general’s basic functions and “ability to outsource authority to ‘ any other officer, employee, or agency.'”
Section 515, which deals with specially appointed attorneys, concerns those tabbed by the attorney general” under law”, suggesting, as Thomas says,” that such an attorney’s office must have already been created by some other law”.
The attorney general’s authority to “appoint officials to detect and prosecute crimes against the United States” is governed by Section 533. Whether or not “officials” are equivalent to “officers”, Thomas writes,” this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel” since it falls within a chapter pertaining to the Federal Bureau of Investigations.
At least” not with the clarity typical of past statutes used for that purpose,” Thomas wrote, “none of these statutes create an office for the special counsel.”
Separately, he noted in a footnote, Congress has previously granted the attorney general power to appoint “additional officers” as he deems fit, but only to the Bureau of Prisons. Further, this suggests that the legislative branch abused the appointment power and would have been more likely to specify it if intended for the attorney general to appoint a special counsel like Jack Smith.
While presidents have previously appointed special prosecutors without citing a specific authorizing statute, Thomas acknowledges that the Supreme Court has never upheld those appointments. He concludes:
Respecting the rights that the Constitution grants to the Office of the Presidency guarantees liberty. The Constitution separates the authority to create and fill offices, keeping it that way. Additionally, there are important questions as to whether the Attorney General has infringed on that structure by creating a Special Counsel’s office that has n’t been established by law. Before this prosecution can proceed, those questions must be answered. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee. ( Emphasis mine )
Perhaps it’s unlikely that Judge Tanya Chutkan, the presiding judge in the case involving the presidential immunity question, will seriously weigh any legal challenge to Special Counsel Smith’s legitimacy.
]READ: Judge Presiding Over Trump’s Jan. 6 Trial Has Track Record Of Politically Charged J6 Rulings ]
Judge Aileen Cannon, however, who is overseeing Jack Smith’s classified documents case, has shown a willingness to check the Justice Department’s work. Given the alleged irregularities and flaws in that prosecution and the Supreme Court’s tendency to be zealous, Smith has historically been downvoted, and the Fischer case has the potential to have ended two of Smith’s four Jan. 6 charges in just the last two business days. Significant portions of the indictment are now no longer subject to prosecution because of the Supreme Court’s presidential immunity ruling.
Even though the justice department was subject to scrutiny from the court, it is remarkable that just one justice stepped in and demanded that the courts be scrutinized over Smith’s office itself.
Thomas should be applauded for his commitment to the Constitution and willingness to stand alone in its defense, but this case serves as a reminder that the courts are not a panacea. In the end, there is no substitute for vigorous legislative action to stop an amok administrative state.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten. substack .com, and follow him on Twitter: @bhweingarten.
