Justice Clarence Thomas wrote a concurring opinion to Monday’s Supreme Court decision on presidential immunity questioning the constitutionality of Special Counsel Jack Smith’s appointment, suggesting not only is the office invalid but Smith cannot legally hold it.suggests that Smith’s appointment is unconstitutional and that lower courts must tackle this issue.
At the heart of the hearing was a brief filed by former U.S. Attorneys Ed Meese and Michael Mukasey, Citizens United, and constitutional scholars. The briefGarland improperly appointed Smith to an office that does not exist with authority Garland does not possess. Gene Schaerr with the boutique law firm Schaerr Jaffe argued on behalf the group during the June hearing.
Given those restrictions, special counsels are generally detailed from the pool of federal prosecutors, which have already received Senate confirmation. Yet Garland hired Smith as a private citizen, granting him the powers of a Constitution officer despite Smith being no more than an employee of Garland.
Trump and his allies argue that Smith’s prosecutions are politically weaponized lawfare designed to weaken block Trump’s reelection and keep Garland and Smith’s boss, Joe Biden, in office. Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. As for §533, it provides that “he Attorney General may appoint officials . . .
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