Supreme Court Justice Clarence Thomas has questioned the legitimacy of Jack Smith’s appointment as special counsel as the Supreme Court ruled that Donald Trump is partially immune from prosecution for actions taken while he was in the White House.

In a 6-3 ruling, the justices returned Trump’s case to the trial court to determine what is left of Special Counsel Jack Smith’s indictment of Trump.

In his concurring opinion, Thomas 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.”

“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 added.

Thomas explained that he was writing a separate opinion, in support of the majority, to highlight that Smith may have been illegally appointed.

“Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course,” he wrote, before focusing on Smith’s appointment.

“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,” Thomas wrote.

In an opinion that mirrors Trump’s legal argument in his election interference case in Washington, D.C., and his classified documents hoarding case in Florida, Thomas suggested that Smith may have been unlawfully appointed.

He wrote that the Constitution only allows for “a limited exception for the appointment of inferior officers.”

“Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law.’”

“The Constitution itself creates some offices, most obviously that of the President and Vice President. Although the Constitution contemplates that there will be ‘other Officers of the United States, whose Appointments are not herein otherwise provided for,’ it clearly requires that those offices ‘shall be established by Law,” he wrote.

Thomas claimed that the federal statutes that the Attorney General uses to justify the appointment of a special counsel are not relevant.

“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 wrote.

Source: Sean O’Driscoll, newsweek.com/clarence-thomas-jack-smith-supreme-court-ruling-donald-trump-immunity-1919643