On Monday, Associate Justice of the Supreme Court of the United States Clarence Thomas raised questions about the legality of the special counsel’s appointment in the two federal cases against former President Donald Trump.
The court recently ruled that presidents have absolute immunity for official acts and no immunity for unofficial acts. However, the justices have left it up to the lower courts to determine what constitutes an official act.
‘If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.’
In a separate concurring opinion, Thomas questioned whether Attorney General Merrick Garland’s appointment of special counsel Jack Smith may not be lawful because the office was not “established by law.”
Thomas stated, “Those questions must be answered before this prosecution can proceed.”
He argued that Garland “purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States.”
“But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires. 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 continued. “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,” he added. “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”
Former Attorney General Ed Meese previously submitted an amicus brief to the Supreme Court arguing that Smith was unconstitutionally appointed, Fox News Digital reported.
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief stated. “Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
Garland claimed Smith was appointed through statutory authority, but Meese contended that it does not “remotely authorize[]” the AG to appoint “a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
Thomas also referred to the same argument in his opinion, stating, “It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office.”
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