Supreme Court Justice Clarence Thomas questioned, in a concurring opinion affirming presidents have “at least presumptive immunity” for official acts, whether Special Counsel Jack Smith’s office and appointment are constitutional in the first place.
In a 6-3 decision on Monday, the Supreme Court ruled presidents have “absolute immunity” for “actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for all “official acts.”
The decision came after Smith, who was appointed by Attorney General Merrick Garland, indicted former President Donald Trump for questioning the administration of the 2020 election. The Supreme Court also sent several of the alleged actions in Smith’s case against Trump back to the lower court to determine whether they constituted official acts — almost certainly quashing Smith’s hopes for a preelection trial.
Thomas, in his concurrence, spent little time reinforcing the majority’s opinion and instead explained he wrote “to highlight another way in which this prosecution may violate our constitutional structure.”
Thomas explained that Garland’s appointment of Smith to prosecute Trump may have been unconstitutional, noting he is “not sure that any office for the Special Counsel has been ‘established by Law’ as the Constitution requires.”
“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,” Thomas opined. “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The
