Clarence Thomas Is Personally Coming For Jack Smith

Ultra-conservative U.S. Supreme Court Justice Clarence Thomas used Monday’s bombshell ruling on presidential immunity to suggest the former President Donald Trump has a path to removing Jack Smith from both of his ongoing federal cases.

In a concurring opinion, Thomas questioned whether there was a legal basis for appointing Smith to prosecute the former president, according to a copy obtained by the New York Times. His rationale could put the wind at the back of Trump’s defense team, who have already made a motion in his classified documents case to dismiss Smith. A decision about how far to extend presidential immunity will now head back down to the lower courts for further determination.

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Just as much was requested by Thomas, who wrote that “lower courts” should explore “essential questions concerning the special counsel’s appointment” without naming U.S. District Judge Aileen Cannon by name. If the appointment by U.S. Attorney General Merrick Garland was found to be illegal, there should be consequences, he added.

“If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote on Monday. “A private citizen cannot criminally prosecute anyone, let alone a former president.”

Smith has made clear his disdain for Judge Cannon for rebuking him on a number of fronts, including excessive redactions of evidence against Trump which she ordered removed. In April the prosecutor essentially gave Cannon an ultimatum to either rule expeditiously on favorable jury instructions or face an immediate appeal. Trump’s team, meanwhile, has argued much of the same, saying Smith should have been approved by the Senate before receiving authorization to oversee cases related to classified documents and the January 6th, 2021 riots at the Capitol building. Smith has countered that the appointments clause of the Constitution gives the U.S. attorney general the authority to appoint “inferior officers” like himself.

Thomas dismissed that argument, writing that it is questionable whether a special counsel would qualify as an “inferior officer… unless a statute created the special counsel’s office and gave the attorney general the power to fill it.”

Since the concurring opinion was issued by Thomas, a top target by critics of the high court, Smith may well argue that his opinion is tainted by prejudice. A trove of revelations about Thomas have emerged in recent years, including that he accepted swanky vacations from conservative mega-donors though insisted his friendship with them played no role in his decision making. His wife, Ginni Thomas, was found to have strongly encouraged President Trump to remain in office in the time between the 2020 election and J6.

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