On Monday, July 1, the Supreme Court released its decision in the case of Trump v. United States. Along with the historic presidential immunity question at issue in the case, Justice Clarence Thomas’s concurrence raises an extremely important foundational question for both federal prosecutions pending against former President Donald Trump.  Thomas’s opinion questions the legality of Attorney General Merrick Garland’s appointment of Jack Smith as Special Counsel.  

You will recall that this exact issue is currently before Judge Aileen Cannon in the Florida documents retention case against Donald Trump. Landmark participated as a friend of the court during Judge Cannon’s hearing held last month in Florida, arguing that Smith’s appointment violated the U.S. Constitution’s Appointments Clause. Former Attorneys General Edwin Meese III (Landmark’s vice chairman) and Michael Mukasey also presented arguments challenging the legality of Smith’s appointment. 

Article II of the Constitution empowers the President to appoint all officers of the United States. Congress, however, may assign appointment power for inferior officers to the President, the courts, or the heads of various departments, if that office has been established pursuant to the laws of the United States.   That language is key.  The Constitution does not grant the President any authority to create offices; rather, that power lies with Congress. Justice Thomas recognizes that while Congress has previously created offices for independent counsels, it has apparently not done so for the position currently occupied by Jack Smith. 

Justice Thomas points out that Attorney General Garland cited no statute that creates an office of the Special Counsel when he appointed Jack Smith. Instead, the statutes upon which Garland relied in appointing Smith merely provide general authority to appoint officials to offices already created by law. 

Justice Thomas’s position on two of these statutes, sections 515 and 533 of the United States Code, are consistent with those taken by Mr. Trump’s lawyers and amici curiae in the classified documents case: they do not create an office of the Special Counsel. He notes that section 515 discusses attorneys already occupying an office created by law, and that section 533 includes a term, “official,” which does not clearly encompass officers. Further, section 533 is unlikely to grant authority for an office of the Special Counsel, as it pertains to the FBI rather than attorneys.  

Justice Thomas also recognizes that the appointment of Jack Smith may be unconstitutional even if an office of the Special Counsel is authorized by law. He questions whether Jack Smith is a principal or inferior officer. If Smith occupies a principal office, he must be appointed by the President and confirmed by the Senate. That did not happen here.  And Justice Thomas concludes by arguing that the courts below must first answer these questions before the prosecution may be allowed to proceed. 

That a Supreme Court Justice is skeptical of the constitutionality of Jack Smith’s appointment is no small matter. Justice Thomas’s concurrence provides Judge Cannon with an effective roadmap for her consideration of a fundamental question before her in the classified documents case. While the media and anti-Trump political class trash the judge for taking so much time considering the very question Justice Thomas is raising, she can persevere knowing that she is not the only judge in America who at least has questions about the Special Counsel’s appointment.