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UPDATE (July 15, 2024, 10:18 a.m. ET): Judge Aileen Cannon on Monday dismissed the Justice Department's classified documents case against Donald Trump.
While the Supreme Court’s immunity ruling is a gift to Donald Trump, it raises open questions like exactly which parts of the federal election interference case are immune from prosecution. But one thing is clear: Justice Clarence Thomas is questioning the validity of special counsel Jack Smith’s appointment in the first place.
“I write separately to highlight another way in which this prosecution may violate our constitutional structure,” Thomas wrote in his concurring opinion in the immunity case, Trump v. United States.
“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,” Thomas continued, adding that he’s “not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.” Even if the special counsel has a valid office, Thomas wrote, “questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause.”
If the appointments clause sounds familiar, that may be because it was the basis for the unusual hearing recently held by U.S. District Judge Aileen Cannon in Trump’s other federal criminal case — the classified documents prosecution in Florida. One of the reasons that the hearing was unusual is that the legality of Smith’s appointment didn’t seem to be a close question. Now we know that at least one Supreme Court justice thinks it’s a question that may benefit Trump. Thomas had raised the issue during the oral argument in April as well.
Trump’s lawyers seized on Thomas’ concurrence in a filing to Cannon after the Supreme Court’s immunity ruling, writing that Thomas’ view “adds force” to their pending appointments clause motion, on which Cannon is yet to rule.
To be sure, no other justice joined Thomas’ concurrence. But Smith’s appointment wasn’t the issue in the immunity case, so we don’t know how a majority of the court would rule if the issue were squarely presented. In the meantime, Thomas’ concurrence, in addition to the immunity ruling itself, presents Cannon with an additional opportunity to further complicate Trump’s prosecution.
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