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!