July 2, 2024

Justice Thomas Rattles Special Counsel Jack Smith

Everyone on the bench appeared to have something to say in the presidential immunity case that was before the Supreme Court.

Perhaps that is why it took so long for a decision to come down, with virtually every justice writing an opinion on the matter.

That would include Justice Thomas, who rattled the cage of Special Counsel Jack Smith.

Is It Legal?

This issue was to have been settled with a piece of legislation called the Independent Counsel Act, which dates back to 1987, with hearings being held on the matter in 1999.

This basically returned the power of appointing a special counsel to the attorney general.

Thomas, however, does not appear to think that this legislation is relevant, stating, "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.'

"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.” He then added that "[t]hose questions must be answered before this prosecution can proceed."

Now, keep in mind, then-Attorney General William Barr appointed a special counsel, John Durham, under the same rules, so if Smith is illegal, then so was Durham.

This is a hot mess, and it is an issue that everyone thought was settled nearly three decades ago, but that is clearly no longer the case.

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