Clarence Thomas takes aim at Special Counsel Jack Smiths appointment in SCOTUS immunity decision

In the Supreme Court’s monumental decision in former President Trump’s immunity case, one justice questioned whether Special Counsel Jack Smith – at the helm of Trump’s unprecedented prosecution – was constitutionally appointed. On Monday, a 6-3 majority ruled that a president has substantial immunity for official acts in office, and sent the case back down to lower courts to determine which acts at the center of Trump’s case were official. “The President is not above the law.But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.

And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive,” the opinion said. In a separate concurring opinion, Justice Clarence Thomas looked to “highlight another way in which this prosecution may violate our constitutional structure” – the appointment of Jack Smith as special counsel. “In this case, there has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.The Constitution provides for ‘an energetic executive,’ because such an Executive is ‘essential to… the security of liberty,'” Thomas wrote. “Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty.

In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices.And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law,” Thomas said, adding that “[t]hose questions must be answered before this prosecution can proceed.”Thomas explained that in this case, the attorney general “purported to appoint a private citizen as Special Counsel to prosecute a...