Former President Donald J. Trump‘s legal team is asking U.S. District Court Judge Aileen Cannon to rule on whether Department of Justice (DOJ) special counsel Jack Smith‘s appointment is constitutional. The attorneys cite concerns U.S. Supreme Court Justice Clarence Thomas raised in his concurring opinion on presidential immunity.
“Highlighting grave separation-of-powers concerns, Justice Thomas suggested that 28 U.S.C. §§ 515 and 533 do not establish ‘by Law’ Jack Smith’s position under the Appointments Clause,” the filing submitted on Friday reads. Trump‘s attorneys continue: “By extension, these statutes are not “other law” under the relevant appropriation, and these ‘essential questions’ should be addressed ‘before proceeding.'”
The National Pulse reported Monday, following the high court’s ruling that Trump is protected from prosecution for official acts, that Justice Thomas also raised whether Jack Smith‘s appointment by Joe Biden’s DOJ was lawful.
THOMAS QUESTIONS SMITH.
“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,” Justice Thomas wrote in his concurring opinion. He continued: “But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
“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,” the justice noted, adding: “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.”
Justice Brett Kavanaugh has raised concerns similar to Thomas’s in the past while also noting that the appointment of a private citizen to the Office of Special Counsel without Senate confirmation likely violates Article II of the U.S. Constitution’s Appointments Clause. Jack Smith did not hold a Senate-confirmed position prior to his appointment by Garland.
