The Patriot Post® · Clarence Thomas v. Jack Smith

The U.S. Supreme Court handed down a major blow to Special Prosecutor Jack Smith’s incitement case against Donald Trump. The Court’s decision should have been expected and, indeed, should have only raised eyebrows if the justices had not ruled that the president enjoys immunity from prosecution while engaged in his official acts.

Of course, Democrats and their Leftmedia cohorts have gone to ridiculous extremes in their effort to suggest that the decision was way outside the bounds of the Constitution. Some of the more absurd claims are that if Trump ordered his political opponents assassinated, it would be covered under this newfound presidential immunity.

Presidential immunity, however, does not now nor has it ever protected the president from engaging in blatant and abjectly lawless actions, and the Democrats know this.

Interestingly, concerns over lawlessness or lawfulness were expressed in the Court’s decision by Justice Clarence Thomas, who wrote a concurring opinion with the majority to highlight a major legal question regarding the Biden administration’s lawfare against Trump.

Thomas’s question was one that others have raised: Is Smith’s appointment by Attorney General Merrick Garland constitutional?

Thomas writes, “In this case, there has been much discussion about ensuring that a President ‘is not above the law.’ But, as the Court explains, the President’s immunity from prosecution for his official acts is the law.” One can almost hear the sarcasm in his voice, as if Thomas were saying, Lawful? Lawful? We’re talking about what’s lawful?

He then hits the crux of the issue: “I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.” In other words, it’s not just Garland’s appointment of Smith that Thomas is questioning, but also the practice of appointments that run outside the bounds of the Constitution.

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas then argues. The biggest problem with Smith’s appointment is that he was not even a member of the federal government when he was tagged by Garland to go after Trump. According to Ronald Reagan’s former attorney general, Ed Meese, this “is in violation of the Appointments Clause of the Constitution.”

Clearly, Thomas agrees with Meese’s assessment. He concludes:

Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. 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.

Talk about a shot across the bow — not only of Smith’s prosecution of Trump but also of the Biden administration’s targeting of him.

So, what may be the impact of Thomas’s concurring opinion in Trump v. United States? Well, it may have little impact on Obama appointee Tanya Chutkan, the judge who is presiding over Smith’s J6 case against Trump. The Court has effectively defanged that case, though Smith’s classified documents case against Trump in Florida may be another story. Judge Aileen Cannon seems none too pleased with the government’s handling of the case, and constitutional questions regarding the legality of Smith as a special prosecutor may move her to check the prosecution’s actions even more stringently.

Either way, Thomas once again is doing the country a service by highlighting the fact that our nation can remain truly fair and just only if it remains faithful to the Constitution.