In a key Supreme Court decision about presidential immunity, Justice Clarence Thomas pointed out a possible legal tactic that former President Donald Trump could use to challenge the appointment of special counsel Jack Smith in his ongoing federal cases.
Justice Thomas, in his concurring opinion, questioned the legality of Smith’s appointment to oversee the cases against Trump. His comments offer significant support to Trump’s defense team, which has already motioned to dismiss Smith in the classified documents case. This issue is now set to be reviewed by lower courts, as specified by Thomas, who called for the need to address “essential questions concerning the special counsel’s appointment.”
This judicial scrutiny could lead to significant implications if the appointment by U.S. Attorney General Merrick Garland is deemed unlawful. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote on Monday. “A private citizen cannot criminally prosecute anyone, let alone a former president.”
The debate intensifies with Smith’s known frustrations with U.S. District Judge Aileen Cannon, whom he has criticized for her handling of evidence redactions. In a move, Smith in April pressured Judge Cannon to expedite a decision on jury instructions under threat of an immediate appeal. Meanwhile, Trump’s legal team argues that Smith’s role required Senate approval, given the nature of the cases involving classified documents and the events of January 6, 2021.
Smith, however, maintains that the appointments clause of the Constitution sufficiently empowers the U.S. attorney general to appoint “inferior officers” like him without additional congressional approval. Thomas refutes this position, suggesting that the role of a special counsel must be explicitly authorized by statute to be valid.
Amidst these legal battles, Thomas himself has been a focal point of controversy. Recent revelations have surfaced about his acceptance of luxurious vacations from conservative mega-donors, though he asserts that these relationships have not influenced his judicial decisions. Moreover, his wife, Ginni Thomas, has been spotlighted for her active role in encouraging Trump to contest the 2020 election results.
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