On Monday, Justice Clarence Thomas made another request to the Supreme Court to challenge the constitutionality of special prosecutors, such as Jack Smith, in light of the court’s ruling on presidential immunity. Thomas requested that the lower courts issue a judgement on Smith and the legality of the special prosecutor’s office before they proceed with the prosecution of Donald Trump’s two federal criminal cases by Smith’s team. Thomas’ opinion was not endorsed by any other justice. Thomas wrote, “In order for this unprecedented prosecution to proceed, it must be conducted by an individual who has been duly authorised to do so by the American people.” “Consequently, the lower courts should resolve these critical inquiries regarding the appointment of the special counsel prior to proceeding.”
Thomas has advocated for the elimination of special prosecutors from the U.S. legal system in response to Trump’s two federal indictments. He maintains that Attorney General Merrick Garland lacked the authority to establish the position. Thomas reiterated those assertions on Monday, increasing the likelihood that the matter will be litigated in federal court—a matter that is certain to eventually reach the Trump-friendly Supreme Court. “We cannot disregard the significance that the Constitution assigns to the determination of who establishes a federal office,” Thomas wrote on Monday. “The Founders mandated that a federal office be “established by law” in order to prevent tyranny.
As James Madison noted, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” Last month, Lawrence Tribe, a constitutional law professor at Harvard University, stated to The Daily Beast that the Executive is not authorised to establish and staff an office unless Congress has reached a consensus.
Tribe also stated that if the legality of the special prosecutor’s office were to be debated in the federal system, it would ensure that Trump would not be required to appear in federal court until after the 2024 run, a goal that has been a long-standing objective of his. In the torrent of well-deserved exuberance surrounding the Supreme Court’s immunity ruling today (text of the entire opinion here), a welcome phenomenon after years of the Marxists’ incessant attempts to destroy the American rule of law, Tribe expressed his concern that the current court, which is a conservative majority, could deliver a “really massive blow to the whole structure of government” in their attempts to shield Trump.
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