Justice Thomas Raises Serious Questions About the Constitutionality of Jack Smith’s Appointment in the Presidential Immunity case.

 

In the torrent of well-justified exuberance about the immunity ruling of the Supreme Court today (text of the entire opinion here), a welcome phenomenon after years of the Marxists’ incessant attempts to destroy the American rule of law, little attention has been paid to what may prove to be one of the most consequential concurring opinions in the history of the Court. I refer to the concurring opinion of Justice Clarence Thomas and his discussion of a most important issue, one which prompted one of his rare questions at oral arguments: Was Attorney General Merrick Garland’s appointment of Jack Smith as Special Counsel unconstitutional and without any legal authority whatsoever?

To say that this is a critical issue in our age of lawfare and weaponization of the Federal law enforcement apparatus against one man is to state the obvious… if the answer is yes then, like the proverbial house of cards, everything that bloodthirsty hoodlum has done is rendered null and void. For an extensive analysis of the oral arguments in this case please refer to my post “A Rule For The Ages: Presidential Immunity at the High Court” which may be found here. For an analysis of the specific issue addressed by Justice Thomas’ concurrence, see my post: “Hoist By His Own Petard? Or, Does Jack Smith Have No More Authority Than Taylor Swift?” accessible here.

Disclaimer: I note my personal admiration and respect for Justice Thomas knows no bounds. I consider that history will eventually prove him to be one of the most important and significant justices to have ever served on the High Court. My Lady and I have had the indescribable opportunity to meet Justice Thomas on two occasions and it is hard for us to be objective about him, as we have found it to be with others who have spent even a little time with him.

The point he addresses in his concurrence was, to the best of my knowledge, first raised in a brief filed by former Attorney General Edwin Meese in the Florida prosecution persecution of President Trump in the Federal Court of Judge Aileen Cannon. The opinion sets forth the issue thusly:

I write separately to highlight another way in which this
prosecution may violate our constitutional structure. In
this case, the Attorney General 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. Art. II, §2, cl. 2. 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. If there is o 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 then proceeds to an analysis of the Appointments Clause of the Constitution and the history of the reason the Founders drafted it to so specifically direct that only the Executive would have the power to fill offices and then only with the advice and consent of the Senate. They imposed a further limit by requiring that any office the President seeks to fill:

… “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.”

The following passage is most interesting to those of us who consider that some of the actions of the current administration border upon, if not become in fact, tyranny:

We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[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.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

Justice Thomas then makes this pithy observation:

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

This has been my effort to submit a very brief summary of a most important opinion. I strongly commend it to those who may wish to read a beautiful piece of research, writing and analysis which have all become hallmarks of Justice Thomas’ work on the Court.

Given the enormous influence of Justice Thomas on the Court and the loud and clear message he sent about where the conservative members of the Court are likely to go should this issue reach the Court, one may justifiably expect that Judge Cannon has assigned her law clerks to perform a thorough analysis of his opinion. While it may be too much to hope for, perhaps Judge Chutkan has made a similar assignment and may request briefs on the issue as Judge Cannon did. Hope springs eternal.

The Supreme Court’s decision on Presidential immunity along with this recognition by a most influential member of the Court of a critical issue needing the Court’s examination represent one of the most welcome developments in a long and depressing time in favor of a return to a vibrant, strong American rule of law.

God Bless America!

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There are 13 comments.

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  1. Hoyacon Member
    Hoyacon
    @Hoyacon

    Glad you covered this.  This is one of several things Justice Thomas does well–branching out in a concurrence from the majority opinion.  He seems to like planting these gems as little seeds.

    • #1
  2. Douglas Pratt Coolidge
    Douglas Pratt
    @DouglasPratt

    I concur with your opinion of Justice Thomas. I heard him speak at my daughter’s high school commencement (a military college prep school in Virginia) and he stayed afterward and spoke to as many of the students as he could. I try to read his opinions, and of course I’ve read his biography. He is precisely the right person in precisely the right place to give us a chance to save the country we love. 

    • #2
  3. Susan Quinn Member
    Susan Quinn
    @SusanQuinn

    I’m so glad that Justice Thomas has spoken out! I understand that Garland doesn’t have to act on the opinion, but someone in another post mentioned that would be like ignoring advice from your boss on how to do your job.

    • #3
  4. AMD Texas Coolidge
    AMD Texas
    @DarinJohnson

    Susan Quinn (View Comment):

    I’m so glad that Justice Thomas has spoken out! I understand that Garland doesn’t have to act on the opinion, but someone in another post mentioned that would be like ignoring advice from your boss on how to do your job.

    I think Garland will thumb his nose at SCOTUS deliberately. He has never gotten over the fact that he isn’t on the Court and he holds a grudge. 

    • #4
  5. Hoyacon Member
    Hoyacon
    @Hoyacon

    AMD Texas (View Comment):

    Susan Quinn (View Comment):

    I’m so glad that Justice Thomas has spoken out! I understand that Garland doesn’t have to act on the opinion, but someone in another post mentioned that would be like ignoring advice from your boss on how to do your job.

    I think Garland will thumb his nose at SCOTUS deliberately. He has never gotten over the fact that he isn’t on the Court and he holds a grudge.

    True, but I accept the trade-off.

    Hard to forget the spin when McConnell blocked him–the idea that he was a Democratic “moderate.”  Ouch.

    • #5
  6. AMD Texas Coolidge
    AMD Texas
    @DarinJohnson

    Hoyacon (View Comment):

    AMD Texas (View Comment):

    Susan Quinn (View Comment):

    I’m so glad that Justice Thomas has spoken out! I understand that Garland doesn’t have to act on the opinion, but someone in another post mentioned that would be like ignoring advice from your boss on how to do your job.

    I think Garland will thumb his nose at SCOTUS deliberately. He has never gotten over the fact that he isn’t on the Court and he holds a grudge.

    True, but I accept the trade-off.

    Hard to forget the spin whenMcConnell blocked him that he was a Democratic “moderate.” Ouch.

    He’s showing his true colors

    • #6
  7. Painter Jean Moderator
    Painter Jean
    @PainterJean

    …was Attorney General Merrick Garland’s appointment of Jack Smith as Special Counsel unconstitutional and without any legal authority whatsoever? 

    Was that really how Justice Thomas posed his question? Your statement suggests that it is, but I have a hard time believing that it was that inflammatory. 

    • #7
  8. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    When I first heard several months ago of the argument that Jack Smith’s appointment should be invalid because the appointment did not comport with law, I thought the argument was an exercise in legal nit-picking. But then it was pointed out that “Special Counsel” Smith’s powers were broader than the powers of prosecutors who have to go through Senate approval hoops or other legislative branch checks on their authority. It then seemed essential to find that Attorney General Garland cannot bypass normal checks and balances to endow “Special Counsel” Smith with such sweeping powers without some input from the legislative branch. So it’s not just legal nit-picking.  

    • #8
  9. Hoyacon Member
    Hoyacon
    @Hoyacon

    Painter Jean (View Comment):

    …was Attorney General Merrick Garland’s appointment of Jack Smith as Special Counsel unconstitutional and without any legal authority whatsoever?

    Was that really how Justice Thomas posed his question? Your statement suggests that it is, but I have a hard time believing that it was that inflammatory.

    I do not see a difference.  Perhaps you do.  Which is fine.

    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. 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.

    • #9
  10. Jim George Member
    Jim George
    @JimGeorge

    Painter Jean (View Comment):

    …was Attorney General Merrick Garland’s appointment of Jack Smith as Special Counsel unconstitutional and without any legal authority whatsoever?

    Was that really how Justice Thomas posed his question? Your statement suggests that it is, but I have a hard time believing that it was that inflammatory.

    I really have a difficult time being gentlemanly and civil with members who make broad statements of criticism which, by their very terms, demonstrate that they have not read the subject material. Should you care to actually read the post and then the actual opinion, which it is obvious you have not read from the words you wrote in your comment, then please, by all means, return so we can have an informed discussion on the wording Justice Thomas used and not use adjectives such as “inflammatory” to use describe words  and phrases you have obviously not actually read. 

    With all due respect. 

    • #10
  11. Terry Mott Member
    Terry Mott
    @TerryMott

    I, too, love Justice Thomas.

    It’s icing on the cake to remember that Joe Biden presided over Thomas’ confirmation hearing circus.  Delicious.

    • #11
  12. Rodin Member
    Rodin
    @Rodin

    The only reason we focus on who is doing what, is because of what they are doing. And when we understand what, it becomes more apparent as to who is really who. Stopping who is but one way of stopping what. But best that who had never thought or considered to do what, because of what we would do to who!

    • #12
  13. philo Member
    philo
    @philo

    Jim George: …appointment of Jack Smith as Special Counsel unconstitutional and without any legal authority whatsoever…

    Wonderful. Now do David Weiss.

     

    • #13
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