Justice Clarence Thomas used the Supreme Court’s ruling on presidential immunity on Monday to again request that the constitutionality of special prosecutors, like Jack Smith, be called into question.
In his opinion, Thomas asked the lower courts to render a ruling on Smith and the legality of the special prosecutor’s office before they proceed with Donald Trump’s pair of federal criminal cases that Smith’s team is prosecuting. No other justice signed onto Thomas’ opinion.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote. “The lower courts should thus answer these essential questions concerning the special counsel’s appointment before proceeding.”
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Since Trump’s pair of federal indictments, Thomas has pushed for special prosecutors to be nixed from the U.S. legal system, claiming Attorney General Merrick Garland did not have the authority to create the office.
Thomas repeated those claims on Monday, elevating the possibility the issue finds itself being argued in federal court—a matter that’d be sure to reach the Trump-friendly Supreme Court eventually.
“We cannot ignore the importance that the Constitution places on who creates a federal office,” Thomas wrote Monday. “To guard against tyranny, the Founders required that a federal office be ‘established by Law.’ As James Madison cautioned, ‘[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... If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.”
Laurence Tribe, a constitutional law professor at Harvard University, told The Daily Beast last month that if arguments regarding the legality of the special prosecutor’s office were to begin in the federal system, it would essentially guarantee that Trump wouldn’t have to go to federal court until after the 2024 election—something that’s long been Trump’s goal.
Tribe said he feared 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.
