Legal scholars say Justice Clarence Thomas may have just given the biggest clue — one that takes direct aim at the special counsel’s position and threatens to further push back Trump’s classified documents case in Florida.
The Supreme Court’s opinion this week granted Trump a wide berth of immunity and largely limited Smith’s election interference case against him in Washington. But Thomas, on his own, went one step further.
“I write separately to highlight another way in which this prosecution may violate our constitutional structure,” Thomas wrote.
He went on to question the way “the attorney general purported to appoint a private citizen as special counsel to prosecute a former president on behalf of the United States.” “I am not sure that any office for the special counsel has been ‘established by law,’ as the Constitution requires,” Thomas continued. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former president.”
Legal scholars say the concurrence is a blatant attempt to give Cannon much-needed ammunition that she could incorporate into any Trump-friendly ruling — without putting her at risk of getting pulled off the case. Cannon’s decisions have already been overturned twice by the 11th Circuit Court of Appeals, and a third reversal could give Smith grounds to ask for her recusal.
“I think this was done essentially to be a road map to Judge Cannon,” said Craig J. Trocino, an associate law professor at the University of Miami.
Trocino stressed that Thomas’ concurrence is “nonbinding,” which means that no lower court judge actually has to follow his guidance. However, it’s an exercise in exerting the Supreme Court’s “persuasive authority,” which fuels lawyers’ arguments and can ensure that appeals survive on their way up to the Supreme Court.
Terri R. Day, a law professor at Barry University in South Florida, explained that Thomas’ legal reasoning could boomerang from D.C. to Florida and back again.
“It has no strength whatsoever. It’s his opinion alone, and it has no authoritative power to hold lower courts to that concurrence,” she said. “But if she agrees and cites him, it bolsters her opinion. And the problem is that some of these, what I would call ‘lone wolf arguments,’ sooner or later can become accepted by a majority of the court.”
“Remember, it’s a concurrence that nobody joined,” she noted.
“It doesn’t happen in this way very often,” Trocino said. “The fact that Justice Thomas decided to take it up on his concurrence is a way to flag for other judges what’s on his mind — and what sorts of arguments will be palatable to him and potentially to the majority.”
On June 21, Cannon held an all-day hearing where she considered what defense lawyers have deemed as Smith’s “unlawful appointment” and heard from outside conservative groups on the matter. She hasn’t yet issued her decision.
The defense’s argument — first raised by Trump, then echoed by conservative group Citizens United, and now by Thomas himself — is that only a sitting U.S. attorney could be tapped as a special prosecutor unless Congress has first specifically created a Justice Department office to do this kind of work. As Thomas said on Monday, “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”
In court filings, federal prosecutors have already argued that history is on their side.
Citing a 1974 high court decision on the Richard Nixon scandal, prosecutors noted that “the Supreme Court recognized in closely analogous circumstances nearly 50 years ago … that the attorney general has the statutory authority to appoint a special prosecutor.” They explained how “Congress has also long demonstrated its understanding that the attorney general has authority to appoint special counsels by repeatedly appropriating funds for the attorney general to compensate them.”
Trocino, the University of Miami law professor, noted that the special counsel appointment process “has been used for over two decades by administrations on both sides of the aisle. It’s been challenged in lower courts, and the challenges never went anywhere.”
Ironically, he pointed out, this conservative theory would obliterate the recent investigations of President Joe Biden’s handling of classified records and the ongoing criminal cases against Hunter Biden.
“I don’t think Justice Thomas is correct in his assessment that Jack Smith doesn’t have constitutional authority to be special counsel. But if I’m wrong, that also means Robert Hur’s appointment is unconstitutional, and David Weiss’ appointment is unconstitutional,” he said.
Besides, he added, establishing an internal special counsel office within the DOJ would make future investigations less independent and more subject to influence from a presidential administration — which is the common conservative talking point currently being lodged against Smith and his prosecutors.
“The appointment of a special prosecutor is perfect for that, to get somebody outside to do the functional equivalent of an independent audit. There needs to be a modicum of independence,” Trocino said. “Look at the rhetoric: that this is Joe Biden’s DOJ doing this. Either Smith is perfectly connected to Biden, or he’s a completely independent, rogue person. You can’t have it both ways.”
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Jose Pagliery is a reporter at NOTUS.