July 2, 2024

Justice Thomas Sets Stage to Challenge Jack Smith’s Appointment

So, over the last few months, there have been several questions about the legality of Special Counsel Jack Smith’s appointment, which was made by Merrick Garland.

There was even a recent amicus brief by some of the brightest legal minds taking up the case that Smith’s appointment was unconstitutional.

Justice Clarence Thomas just fueled that fire by openly questioning the appointment.

Was It Legal?

In the presidential immunity case, Justice Thomas fired a shot right across the bow of Special Counsel Jack Smith.

Justice Thomas wrote a concurring opinion in the ruling, stating, “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.

“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.”

He then concluded, “Those questions must be answered before this prosecution can proceed.

“We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”

This is getting a lot of people worked up but again, I hate to say it, but Thomas is wrong here, as are the challenges to Smith’s appointment.

This issue was addressed more than two decades ago when rules were updated to permit the Attorney General to appoint a special counsel. They have never been challenged since, including when then-Attorney General William Barr appointed John Durham to investigate the Russian collusion probe.

The Hearing was in regard to the Independent Counsel Act which was originally presented in 1987.

The 1999 hearing outlined very specific guidelines for the AG to appoint a special counsel, stating, “The regulations set forth (28 C.F.R. 600.1) a three-part analysis for determining whether to appoint a special counsel. First, the Attorney General must determine that ‘criminal investigation of a person or matter is warranted.’

“Then, he or she must determine whether investigation or prosecution of the ‘person or matter’ by a U.S. Attorney’s Office or a Justice Department litigating division would present either ‘a conflict of interest for the Department’ or ‘other extraordinary circumstances.’ Finally, a further question is to be asked, namely, whether ‘it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.’”

Now, this has nothing to do with whether the DOJ was weaponized against Trump, as that is a completely different argument.

Quite frankly, I am a bit shocked that Thomas would put himself out there like that in an official opinion when the matter has clearly been settled, and Republicans have used these guidelines in the past to appoint a special counsel.

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