With his lawfare campaign against former President Donald Trump faltering at every turn, Special Counsel Jack Smith has asked a federal judge to cut him a significant break.
As The Hill reports, Smith last week requested that Judge Aileen Cannon, currently overseeing Trump's classified documents case, reject consideration of Supreme Court Justice Clarence Thomas' concurrence in the presidential immunity dispute, suggesting it has no bearing on the matter.
At issue for Smith is a concurrence authored by Thomas in the recent 6-3 decision concerning presidential immunity.
As Newsweek noted, the majority of the high court acknowledged the existence of broad immunity for “official” presidential acts and remanded Trump's election interference case back to the lower court for factual determinations about the conduct in question.
It was in Thomas' concurrence to that outcome that an issue was raised, and which has since become a key point of contention for Trump's legal team.
In his opinion, Thomas declared, “No former president has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And that is so despite numerous past presidents taking actions that many would argue constitute crimes.”
Thomas went on, “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the special counsel's appointment before proceeding.”
The concerns voiced by Thomas have been echoed by former Attorney General Ed Meese who, together with law professors Gary Lawson and Steven Calabresi, filed an amicus brief with the high court contending that Attorney General Merrick Garland's appointment of Smith as special counsel ran afoul of the Constitution's Appointments Clause.
In their brief, the men argued that as a private citizen, Smith was not eligible for appointment to the role given to him by Garland.
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” they wrote.
The legal scholars added that no statute or constitutional provision “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
In that vein, Trump's lawyers used the immunity decision and Thomas' concurrence to argue that the documents case should be paused with regard to both the immunity issue as well as to the justice's concerns about the legitimacy of Smith's appointment.
Smith, unsurprisingly, has asked Cannon to ignore Thomas' words and to proceed with the documents case as originally planned.
Though the special counsel contended that Thomas' claim was irrelevant to the classified documents controversy and said that Trump did not initially raise it as a concern, it remains to be seen whether Cannon will see things differently, as Trump's team hopes she does.
