Staff Reports
Justice Clarence Thomas once again proved why he’s a favorite among conservatives by tearing into the unconstitutional appointment of Jack Smith as special counsel. Thomas and his fellow constitutional bulldog Justices Alito, Gorsuch, and Kavanaugh put their signatures on the majority opinion, declaring that the president enjoys presumptive immunity from prosecution for all official acts. Chief Justice John Roberts guided this sanity-restoring opinion, while Justice Barrett mostly joined in, likely sourcing her sanity from the same place as the four horsemen.
The liberal Justices—Sotomayor, Kagan, and Jackson—predictably dissented. Their opposition is as surprising as snow in January. The contentious ruling has been kicked back to the overburdened federal district court in D.C., now charged with the critical task of sorting out what is Smith’s paranoia-laden 45-page indictment against Trump could, if anything, be considered outside of the former president’s official acts.
Thomas didn’t stop there. The justice took the opportunity to lambast the legality of Smith’s very existence as special counsel. He pointed out that the Attorney General’s move to appoint Smith—a private citizen—as special counsel is more dubious than the Loch Ness Monster. The Constitution requires that any such office be established by law, and the last time anyone checked, no such statute exists. It’s as if Thomas was saying, “Nice try, but you can’t just fabricate government roles out of thin air.”
In Court Ruling, Justice Thomas Questions Legality of Jack Smith's Appointment as Special Counsel via @WestJournalism https://t.co/tlyE6EuCRf@dojphofficial @JudiciaryGOP @realDonaldTrump @JudicialWatch @GOP @USSupremeCourt
— Jean Pierre (@JeanPierre2024) July 3, 2024
Before anyone thinks of rehabilitating Smith’s legitimacy by bringing up his résumé, which includes time served as the chief prosecutor for the special court in The Hague, Thomas ruthlessly dismantled the notion that Smith could act as a legitimate enforcer of American justice. Only personnel duly authorized by the American public and vetted through the proper legislative channels can undertake a prosecution so significant.
To double down on the smackdown, Thomas took a history lesson detour, reminding everyone that the Founders intentionally designed the structure of American governance to prevent any slippery slope into monarchical rule. Only Congress has the power to create offices, and it’s not exactly shy about it when it does. The Attorney General’s lone-wolf appointment of a special counsel skips all the necessary steps our wise Founders set up as checks and balances.
The issues Thomas flagged line up squarely with arguments made by former Reagan Attorney General Edwin Meese, who argued back in the day—and again recently—that such a role needs explicit authorization through proper channels, not the whims of politically driven appointees. Perhaps someone needs to send a memo to Merrick Garland: the Constitution still matters. Smith’s team might cite obscure parts of the Constitution to justify their actions, but as Thomas meticulously dissected, their whole argument falls apart faster than a house of cards without a law establishing such an office.
On the ground in Florida, Trump’s attorneys are echoing the very same constitutional concerns about Smith’s shady appointment. It’s almost as if common sense and a grasp of constitutional constraints are spreading like wildfire among conservative legal minds. The mainstream media, of course, will continue to frame this as some unprecedented attack on democratic norms. But for anyone with a basic understanding of the Constitution, it’s a necessary defense against overreach and the unchecked power of politically motivated actors.
