Justice Clarence Thomas has raised significant concerns about the constitutionality of Special Counsel Jack Smith's appointment, suggesting it may violate the Appointments Clause of the Constitution.

Justice Thomas' nine-page concurring opinion in the Trump immunity case argues that the legitimacy of Smith's appointment must be addressed before any prosecution can proceed, as Breitbart reports.

Supreme Court's Recent Ruling and Its Implications

The Supreme Court's decision, which saw a 6-3 split, ruled that presidents do have limited immunity from criminal prosecutions for actions performed while in office.

This ruling directly relates to Smith's prosecution of former President Donald Trump, who faces allegations of interfering in the 2020 election and mishandling classified documents.

Concerns Over Appointment Procedures

Thomas highlighted in his opinion that Smith's appointment may not have been in line with the Appointments Clause. Typically, Special Counsels are chosen from among federal prosecutors who have received Senate confirmation. However, Smith was appointed as a private citizen, raising concerns about the legality of his role.

In his opinion, Thomas pointed out that Congress, by requiring federal offices to be created "by Law," intended to provide a check against presidential overreach. He emphasized that the President cannot unilaterally create offices and fill them without congressional approval.

Judge Cannon and Related Proceedings

Judge Aileen Cannon is currently overseeing Smith's case concerning classified documents retention. On June 21, arguments regarding the constitutionality of Smith's appointment were presented in her court.

A brief filed by former U.S. Attorneys Ed Meese and Michael Mukasey, along with Citizens United and several constitutional scholars, argued that Attorney General Merrick Garland improperly appointed Smith.

Thomas' Detailed Analysis

In his detailed analysis, Thomas questioned whether the office of the special ounsel was established by law, as required by the Constitution. He noted that the statutes cited by Garland to justify Smith’s appointment were not clear. Sections 509 and 510 of the relevant statutes pertain to the attorney general's functions and delegation of authority but do not explicitly establish an office for a special counsel.

Thomas further explained that Section 515 suggests that an attorney appointed by the attorney general under law must occupy an office already created by another law. He also noted that this section is found in a chapter concerning the Federal Bureau of Investigation, not in the chapters about U.S. attorneys or the now-lapsed independent counsel.

Questions of Law and Constitutionality

Thomas argued that if no law establishes the office that Smith occupies, then his appointment is invalid. He stated, "A private citizen cannot criminally prosecute anyone, let alone a former President."

He called for a thorough examination of the statutes and emphasized the need to respect the Constitution's separation of powers.

Media Dismissal and Political Motivations

Despite the significant constitutional questions raised, the media has largely dismissed concerns about Smith's appointment as a political exercise. Trump's allies argue that the prosecutions are politically motivated to hinder his chances of reelection.

Thomas concluded his opinion by stating that the prosecution must be conducted by someone duly authorized, stressing the importance of the Constitution's requirements for creating federal offices. He emphasized that if Congress has not agreed on the establishment of a particular office, the Executive branch cannot unilaterally create and fill it.

Final Conclusion

Justice Clarence Thomas' recent concurring opinion raises critical questions about the constitutionality of special counsel Jack Smith's appointment.

Highlighting the need for adherence to the Appointments Clause and the separation of powers, Thomas argues that the legality of Smith’s role must be resolved before any prosecution can proceed. As the case continues to unfold, Judge Aileen Cannon will preside over the classified documents case, which will undoubtedly delve deeper into the constitutional issues at hand.

The broader implications of this case will likely impact the ongoing legal proceedings involving former President Donald Trump.