In Court Ruling, Justice Thomas Questions Legality of Jack Smith’s Appointment as Special Counsel

In a concurring opinion to Monday’s U.S. Supreme Court presidential immunity ruling, Justice Clarence Thomas argued that Jack Smith’s appointment as special counsel is unconstitutional.

Chief Justice John Roberts wrote in the majority opinion that the president “is entitled to at least presumptive immunity from prosecution for all his official acts.”

This is a much broader scope of immunity than Smith’s prosecutors have argued before the Washington, D.C. federal district court, where former President Donald Trump’s 2020 election interference case is being conducted.

Thomas, along with justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, signed on to the majority opinion, while Justice Amy Coney Barrett joined in most of it.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson all dissented.


Former NFL Player Taken Into Custody After His Missing Son Is Located by Police

The case has been sent back to the federal district court to determine which wrongdoing, if any, contained in Smith’s 45-page indictment against Trump falls within what could be deemed his official acts as president.

In his concurring opinion, Thomas explained, “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.”

Should Jack Smith be removed as special counsel?

“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,” the justice added.

Before he was appointed special counsel by Attorney General Merrick Garland in November 2022, Smith served as the chief prosecutor for the special court in The Hague in the Netherlands. Before that, he was a prosecutor in the U.S. Justice Department, according to a DOJ news release.

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas argued.

The justice then went into some history, highlighting, “The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices.”

This requirement was an intentional check on executive power.

“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,” Thomas wrote.

“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,” he added.


U.S. Marshals Locate 200 ‘Critically Missing’ Children in ‘Operation We Will Find You 2’

Fox News reported that the issues Thomas raised in his concurring opinion mirror some of the points made by former Reagan Attorney General Edwin Meese in an amicus brief to the Supreme Court in Trump’s presidential immunity case.

He argued that “even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel.”

Meese said the only way Garland or any other attorney general can designate a special counsel is by assigning an existing U.S. attorney (all of whom must go through Senate confirmation) to oversee the criminal prosecution.

Trump’s attorneys have raised the issue of the constitutionality of Smith’s appointment in the classified documents handling case being brought in Florida and overseen by federal district court Judge Aileen Cannon.

The New York Times reported, “Mr. Smith’s deputies have countered that under the appointments clause of the Constitution, agency heads like Mr. Garland are authorized to name ‘inferior officers’ like special counsels to act as their subordinates.”

But in his concurrence, Thomas questioned this reasoning, writing that the only way Smith would be an “inferior officer” is if  “a statute created the special counsel’s office and gave the attorney general the power to fill it.”

A Note from Our Deputy Managing Editor:


I heard a chilling comment the other day: “We don’t even know if an election will be held in 2024.” 


That wasn’t said by a conspiracy theorist or a doomsday prophet. No, former U.S. national security advisor Lt. Gen. Michael Flynn said that to the founder of The Western Journal, Floyd Brown.


Gen. Flynn’s warning means that the 2024 election is the most important election for every single living American. If we lose this one to the wealthy elites who hate us, hate God, and hate what America stands for, we can only assume that 248 years of American history and the values we hold dear to our hearts may soon vanish.


The end game is here, and as Benjamin Franklin said, “We must all hang together, or assuredly we shall all hang separately.”


All of this means that without you, it’s over. We have the platform, the journalists, and the experience to fight back hard, but Big Tech is strangling us through advertising blacklists, shadow bans, and algorithms. Did you know that we’ve been blacklisted by 90% of advertisers? Without direct support from you, our readers, we can’t continue the fight.


Can we count on your support? It may not seem like much, but a Western Journal Membership can make all the difference in the world because when you support us directly, you cut Big Tech out of the picture. They lose control. 


A monthly Western Journal Membership costs less than one coffee and breakfast sandwich each month, and it gets you access to ALL of our content — news, commentary, and premium articles. You’ll experience a radically reduced number of ads, and most importantly you will be vitally supporting the fight for America’s soul in 2024.


We are literally counting on you because without our members, The Western Journal would cease to exist. Will you join us in the fight? 



Josh Manning

Deputy Managing Editor

The Western Journal

Randy DeSoto has written more than 3,000 articles for The Western Journal since he joined the company in 2015. He is a graduate of West Point and Regent University School of Law. He is the author of the book “We Hold These Truths” and screenwriter of the political documentary “I Want Your Money.”


Harrisburg, Pennsylvania




Graduated dean’s list from West Point


United States Military Academy at West Point, Regent University School of Law

Books Written

We Hold These Truths

Professional Memberships

Virginia and Pennsylvania state bars


Phoenix, Arizona

Languages Spoken


Topics of Expertise

Politics, Entertainment, Faith

Source link