2024-07-01T18:59:39.197Z“The Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law,’” Supreme Court Justice Clarence Thomas wrote Monday. (J. Scott Applewhite/AP)Supreme Court Justice Clarence Thomas tackled a question in his presidential immunity opinion Monday that Donald Trump’s attorneys didn’t bring before the nation’s highest court: Was special counsel Jack Smith legally appointed?Thomas joined his fellow conservative justices on a blockbuster majority opinion that expanded the definition of presidential powers and narrowed the scope of Trump’s D.C. election interference trial.He also wrote a concurring opinion that delved into the separate question of whether Attorney General Merrick Garland violated the Constitution when he appointed Smith in November 2022 to oversee the two federal prosecutions of Trump.Thomas argued both that the special counsel’s office needs to be established by Congress and that Smith needed to be confirmed by the Senate. He said he tacked on his concurring opinion to the immunity ruling to “highlight another way in which this prosecution may violate our constitutional structure.”“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”Thomas was weighing in on what is generally considered a far-fetched legal theory pushed by Trump’s attorneys in lower courts and by some conservative legal groups. They argue that Smith was illegally appointed and funded and say the criminal cases against Trump should be dismissed.Trump filed a motion to dismiss the federal classified documents case against him in Florida on the basis that Smith was illegally appointed. He did not file a similar motion in the D.C. federal election interference case.Similar challenges to other recent special counsels, including Robert S. Mueller III, have been rejected in court.Thomas’s decision to include his assessment on the appointing in the Monday opinion signals to Trump’s legal team and others that he wants the Supreme Court to take up the issue of the constitutionality of Smith’s appointment, said Robert J. McWhirter, a constitutional law expert.It takes four of the nine justices to decide to take up a case, and it is unclear based on Thomas’s solo concurrence whether he has any support.Democrats and some ethics experts had called for Thomas to recuse himself from Trump’s election-interference case because his wife, Virginia “Ginni” Thomas, was involved in the effort to overturn the 2020 election results.Trump’s attorneys argued at a hearing last month in Florida that because Garland has repeatedly said Smith is acting independently, the special counsel should be considered a “principal officer” — a top government official who has no immediate supervisor and whose appointment requires Senate approval.Prosecutors in the classified documents case countered that Smith, like other special counsels before him, is not a principal officer. The team said that while federal regulations say Garland does not provide day-to-day supervision of special counsels, the attorney general ensures they adhere to Justice Department protocols and can review major investigatory steps.In Monday’s concurrence, Thomas wrote that the courts must determine whether Smith is a principal officer or an “inferior officer,” which does not require Senate approval. But even if Smith is an inferior officer, Thomas posited, there must be a congressional statute that creates the special counsel office.“So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law,’” Thomas wrote.At the hearing on Smith’s appointment in Florida, U.S. District Judge Aileen M. Cannon acknowledged that precedent seems to support Garland’s appointment of Smith and that there would be a high legal bar for overturning it. In an unusual move, she invited outside groups to argue about the constitutionality of the appointment.Cannon has not yet ruled on the motion.McWhirter said it is unusual and inappropriate for a justice to include a largely unrelated opinion in a ruling, but he said it’s something that Thomas often does as he seemingly tries to invite outside groups to bring cases before the court.Thomas’s opinion has no legal teeth and does not create precedent. Still, McWhirter said Thomas’s words could embolden Cannon to overturn past rulings or encourage defense lawyers to push this issue through the lengthy appeals court process.“It is not part of what a justice is supposed to do,” McWhirter said. “It does signal to everyone that he is willing to take up this issue.”