WASHINGTON — When the Supreme Court this month handed a big win to former President Donald Trump on presidential immunity, conservative Justice Clarence Thomas wrote his own opinion raising questions about a related issue: Was special counsel Jack Smith lawfully appointed?
"If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," Thomas wrote. It was questionable whether Smith's appointment was indeed valid under the Constitution's Appointments Clause, he added.
Thomas did not definitively answer the question, but U.S. District Judge Aileen Cannon echoed his approach to Trump’s election interference case Monday when she dismissed the charges in Trump's classified documents case in Florida, which Smith is also prosecuting.
Her ruling, which cited Thomas' opinion three times, raises the possibility of an appeal in the case going to the Supreme Court, where the nine justices would tackle the issue head-on. The court has a 6-3 conservative majority.
What is unclear, however, is whether Thomas' views would carry the day, as no other justices signed on to his opinion this month.Lawyers involved in arguing the issue in the Florida court had predictably differing views about whether Thomas’ position would prevail if the issue came before the Supreme Court.
“I think Justice Thomas is always on the vanguard of conservative legal thought,” said Josh Blackman, a professor at South Texas College of Law who filed a brief backing Trump on the appointment issue. “His concurrence was solo, but I suspect several other members, maybe even a majority, may agree with him.”
Matthew Seligman, a lawyer who argued in support of Smith’s appointment, said in an email that the Supreme Court might not even have to take up the issue as the 11th U.S. Circuit Court of Appeals may reverse Cannon’s ruling before it gets there.
“And I think that it’s quite unlikely that a majority of the court would adopt Cannon’s (or Thomas’) position,” he added.
At issue is whether Attorney General Merrick Garland had authority to appoint Smith to the post of special counsel so he could investigate Trump. Senior Justice Department officials and U.S. attorneys are all appointed by the president and subject to Senate confirmation.
Seligman said one of the statutes Garland cited is “crystal clear." It says the attorney general can appoint officials “to detect and prosecute crimes against the United States.”
Appointing a federal prosecutor outside the Justice Department's normal chain of command has often been seized upon as a way to tackle politically charged cases over the years. The Supreme Court has never definitively ruled on whether the appointment process is lawful, although in the 1974 U.S. v. Nixon case, concerning President Richard Nixon's attempt to withhold White House audiotapes, the court appeared to assume it was.
Cannon concluded that statutes Garland said gave him that power did not in fact do so. Garland's only alternative would be to appoint someone who had been confirmed by the Senate or ask Congress to pass a law specifically giving him authority, she added.
Thomas had likewise written that when Garland appointed Smith, "he did not identify any statute that clearly creates such an office."
Trump's lawyers did not respond to a request seeking comment on whether Thomas' opinion indicated how the Supreme Court could rule. In a court filing in which they alerted Cannon to Thomas' opinion, they said his analysis "adds force" to their arguments.
Smith, meanwhile, downplayed Thomas' opinion in his own filing last week, pointing out that it was a "single-justice concurrence" that did not bind Cannon. He also noted that in the election interference case in Washington, Trump had not even challenged Smith's appointment, including at the Supreme Court, where the focus was on presidential immunity.
The issue was raised at the Supreme Court in an amicus brief filed on behalf of former Attorney General Edwin Meese and others. A similar brief was filed in the Florida case.
Thomas' opinion, Smith wrote, addressed "an issue that Trump did not raise, that the parties did not brief, and that was not relevant."
