Justice Clarence Thomas Questions Jack Smith’s Legitimacy Following Unprecedented Supreme Court Ruling

By: Julia Mehalko | Published: Jul 02, 2024

Supreme Court Justice Clarence Thomas has openly questioned Jack Smith’s legitimacy as the special counsel a part of former President Donald Trump’s criminal prosecution case.

This questioning is revealed in Thomas’ concurring opinion that he wrote following the Supreme Court’s unprecedented ruling that has declared Trump is partially immune from prosecution.

The Supreme Court’s Presidential Immunity Ruling

The Supreme Court has finally decided whether presidents are immune from criminal prosecution or not — and their ruling has been criticized by many, yet applauded by conservatives.

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According to the court, a president is immune from prosecution of official acts conducted while in the Oval Office. However, unofficial acts done by the president are not immune.


Trump Is Partially Immune

This ruling — which was a 6-3 decision along party lines — has therefore left Trump’s federal criminal cases up in the air.

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Trump could be partially or fully immune in these cases if he can prove that he conducted these allegedly illegal moves as an official act as president.

A Difficult Distinction

Of course, many legal analysts have already come out to explain that clarifying what an official act as president is — versus an unofficial, private one — could become quite complex.

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For example, Trump could claim that all of his decisions were made in an official capacity. This would, therefore, allow him to refrain from being prosecuted.

A Lower Court Decision

The Supreme Court refrained from deciding what would be deemed an official or unofficial act as president, which has further complicated the matter.

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Instead, they’ve allowed the lower courts to take a look at Trump’s federal cases and decide whether these acts were official presidential moves, or simply private and unofficial matters.

Another Attack on Trump’s Criminal Cases?

However, the prosecution involved with these Trump federal criminal cases might have more worries ahead, thanks to questioning conducted by Justice Thomas.

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In his concurring opinion of this case, Thomas questioned the legitimacy of Jack Smith’s appointment as special counsel and seemed to suggest that his appointment violates the Constitution.


An Unprecedented Presidential Case

Thomas first began by explaining that no other president in the history of the country has faced criminal prosecution for his actions.

Supreme Court Justice Clarence Thomas speaking with his hands raised.

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He wrote, “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.”


An Authorized Official

Thomas further explained that those conducting the prosecution should be authorized by the American people.

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“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,” Thomas said.


An Illegal Appointment?

Thomas then suggested that Smith’s appointment as Special Counsel could be illegal, as the Constitution doesn’t allow these appointments to happen.

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Thomas wrote, “I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by law,’ as the Constitution requires.”


An Unlawful Appointment

Thomas, therefore, has claimed that Smith’s appointment may not be legal. This allegedly unlawful appointment could further harm the prosecution’s criminal case against Trump, especially as Trump’s legal team has already made these claims in the past.

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Thomas seems to mirror the comments and arguments that Trump has made about Smith.


Establishing Offices by Law

In his opinion, Thomas also wrote that the Constitution allows the establishment of other offices by law. However, he states that this hasn’t been done by the Attorney General when creating this Special Counsel role.

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“None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose,” he said.


An Uphill Battle?

This questioning of Jack Smith’s legality while writing an opinion on a case that has handed Trump at least partial immunity has further made analysts theorize that Trump’s federal legal cases could eventually be dropped.

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This has caused many to criticize the Supreme Court, which is now a conservative-led majority. Meanwhile, conservatives who support Trump have applauded the move.