Supreme Court Justice Clarence Thomas appears to be open to the idea that special counsel Jack Smith's appointment was unconstitutional.
The Supreme Court is currently hearing arguments from former President Donald Trump's lawyers that Trump's alleged misconduct was covered by presidential immunity.
Furthermore, Trump's lawyers are arguing that Jack Smith's appointment as a special counsel is illegitimate on constitutional grounds.
During a hearing, Thomas asked Trump's attorney John Sauer, if “you, in this litigation, challenge the appointment of special counsel?”
Sauer responded by saying that they "have done so in the Southern District of Florida case, and we totally agree with the analysis provided by Attorney General Meese and Attorney General Mukasey.” Meese and Mukasey are former attorney generals who filed an amicus brief on Trump's behalf.
Thomas's inquiry makes it clear that he has read the brief and is considering the possibility that Smith's appointment violated the Constitution’s appointments clause.
If Thomas is asking these questions, it is very likely that the rest of the Supreme Court's bench will be considering these arguments as the case goes on.
The appointments clause states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States."
The clause continues "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
With that refresher, that means Smith has no legitimacy because he was not nominated by the president and confirmed by the Senate. He was appointed to his position by Attorney General Merrick Garland.
Smith was not a member of the Department of Justice either and was a private citizen, not a public servant confirmed by the Senate.
It's clear that Smith's appointment was not conducted properly and violates the appointments clause.
This issue has been largely overlooked but that may quickly change now that Justice Thomas is asking tough questions that likely have Smith's team panicking.
The Supreme Court already appears poised to side with Trump's arguments that he has presidential immunity and Smith being disqualified from his position would be just an insult to injury at this point.
