Supreme Court Justice Clarence Thomas raised questions about special counsel Jack Smith's appointment that could undermine his case against former President Donald Trump, MSNBC reported. In a recent concurrent opinion on Trump's immunity defense, Thomas said he doubts the constitutionality of Smith's appointment at all.
The high court's decision on presidential immunity earlier this month has already eased some of Trump's legal woes in his election interference case. Now, Judge Aileen Cannon, who is overseeing his classified documents case, could ease up on Trump as well.
Opening the door to examine Smith's position could give Trump's defense team another arrow in its quiver. Thomas had raised the question about Smith's appointment during oral arguments in April but officially called it into question with his recent opinion.
If there's no validity to Smith's appointment, it could undermine the entire investigation. "I write separately to highlight another way in which this prosecution may violate our constitutional structure," Thomas explained in his concurring opinion.
Thomas explained his reasoning for objecting to Smith in the context of the immunity question before him. "In this case, there has been much discussion about ensuring that a President ‘is not above the law,'" Thomas wrote, according to Fox News.
"But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for ‘an energetic executive’ because such an Executive is ‘essential to… the security of liberty,'" Thomas continued.
"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," Thomas explained.
"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," which Thomas said "must be answered before this prosecution can proceed." Thomas added that the attorney general "purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States."
However, Thomas now doubts Smith's appointment has been ‘established by Law,’ as the Constitution requires," which provides "an important check against the President – he cannot create offices at his pleasure," Thomas said. "If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution," Thomas concluded.
Thomas noted that Trump is the only former president who "has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country," even as others have engaged in possible crimes. "If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people," Thomas wrote.
If Smith's appointment was unconstitutional in the first place, then the classified documents case against Trump falls like a house of cards. There are already signs this is happening already based on the immunity question alone, The Hill reported.
Last week, Cannon granted the defense team's request to delay court deadlines so that prosecutors could review the case more thoroughly in light of the Supreme Court's immunity decision. Cannon has yet to rule on Smith's appointment but noted the precedent supports it.
However, the Washington Post reported that she also allowed outside groups to make the case against it before issuing her ruling, which is an extraordinary move. Perhaps this signals that the validity of Smith's appointment is still an open question in her courtroom.
Those who wish to see Trump behind bars will do anything to make it happen. Unfortunately for them, their zeal to get him has led to some missteps that could undermine the entirety of their prosecution.
