Justice Questions VALIDITY of Jack Smith’s APPOINTMENT
One judge in the Supreme Court’s landmark ruling on former President Trump’s immunity case questioned the constitutionality of Special Counsel Jack Smith’s appointment, who was leading Trump’s historic prosecution.
On Monday, a 6-3 majority decided that a president has significant protection for official conduct while in office. As a result, the case was remanded to lower courts to ascertain whether the main acts in Trump’s case were official.
“The legislation does not exempt the President. However, under the Constitution, Congress cannot make the President’s actions while performing Executive Branch duties illegal. Furthermore, the decision said that an active, independent Executive has always been required under the Framers’ arrangement of divided powers.
Justice Clarence Thomas sought to “highlight another way in which this prosecution may violate our constitutional structure”—the designation of Jack Smith as special counsel—in a separate concurring opinion.
In this instance, there has been a great deal of talk about making sure the president ‘is not above the law.’ However, as the Court clarifies, the President is legally immune from punishment for actions taken while in office. Because “an energetic executive” is “essential to… the security of liberty,” the Constitution guarantees it, according to Thomas.
“Liberty is secured by upholding the safeguards the Constitution affords the Office of the President. In a similar spirit, the Constitution protects liberty by dividing the authority to establish and fill positions. Thomas said that “[t]hese questions must be answered before this prosecution can proceed. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.”
In this instance, Thomas said, the attorney general “purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States.”
However, I doubt that any Special Counsel position has been “established by law,” as required by the Constitution. The President is subject to a significant restriction by the Constitution, which forbids him from creating federal posts “by Law”; Congress must do so, he stated.
