The Supreme Court has ruled in a monumental decision that presidents have substantial immunity from criminal prosecution for official acts while in office. This decision, which came in a case concerning former President Trump’s immunity, has sent the case back to lower courts to determine which specific actions at the heart of the case were considered official acts. While the court recognized that the president is not above the law, it also emphasized the importance of an independent executive branch, stating that Congress cannot criminalize a president’s conduct in carrying out their constitutional duties.
However, the decision has sparked further controversy surrounding the appointment of Special Counsel Jack Smith. In a concurring opinion, Justice Clarence Thomas expressed serious concerns about the constitutionality of Smith’s appointment, questioning whether the office of Special Counsel has been established by law. He argued that the Constitution requires Congress to establish federal offices, and there’s uncertainty regarding whether the Attorney General has the authority to create an office like the Special Counsel without explicit congressional authorization.
Thomas further pointed out that a private citizen, like Smith, cannot prosecute anyone, let alone a former president, without a legally established office. He highlighted that throughout history, no former president has faced criminal prosecution for actions taken while in office, despite some presidents engaging in potentially criminal conduct. Thomas contends that if this unprecedented prosecution against Trump is to proceed, it must be conducted by someone duly authorized by the American people.
Adding fuel to the fire, former Attorney General Ed Meese, who served under President Ronald Reagan, argued in an amicus brief that Smith’s appointment was unconstitutional. He claimed that Smith lacks the authority to represent the United States because he was improperly appointed. Meese further argued that there is no statutory authority for the appointment of a Special Counsel by the Attorney General, emphasizing that such appointments should be made by the President with the consent of the Senate.
Thomas echoed Meese’s arguments, stating that questions remain about whether the Attorney General filled the Special Counsel’s office in accordance with the Appointments Clause of the Constitution. He questioned whether the Special Counsel is a principal or an inferior officer, noting that if the former, his appointment is invalid as he was not nominated by the President and confirmed by the Senate, as required for principal officers. He concluded that these questions need to be resolved before the prosecution against Trump can proceed, emphasizing the importance of upholding the constitutional separation of powers to safeguard liberty.
