THE TRUMP CASES
Thomas uses Trump immunity ruling to question Jack Smith appointment

Echoing a long-shot argument made by Donald Trump’s attorneys in Florida, Justice Clarence Thomas said special counsels need Senate confirmation.

By Perry Stein
July 1, 2024 at 6:17 p.m. EDT

Supreme Court Justice Clarence Thomas tackled a question in his presidential immunity opinion Monday that Donald Trump’s attorneys didn’t bring before the nation’s highest court: Was special counsel Jack Smith legally appointed?

Thomas joined his fellow conservative justices on a blockbuster majority opinion that expanded the definition of presidential powers and narrowed the scope of Trump’s D.C. election interference trial. … He also wrote a concurring opinion that delved into the separate question of whether Attorney General Merrick Garland violated the Constitution when he appointed Smith in November 2022 to oversee the two federal prosecutions of Trump.

Thomas argued both that the special counsel’s office needs to be established by Congress and that Smith needed to be confirmed by the Senate. He said he tacked on his concurring opinion to the immunity ruling to “highlight another way in which this prosecution may violate our constitutional structure.” … “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”

Thomas was weighing in on what is generally considered a far-fetched legal theory pushed by Trump’s attorneys in lower courts and by some conservative legal groups. They argue that Smith was illegally appointed and funded and say the criminal cases against Trump should be dismissed.

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By Perry Stein
Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald. Twitter https://x.com/perrystein