Justice Clarence Thomas has warned that the Democrats in Joe Biden's administration apparently broke the law in their lawfare schemes to try to prosecute President Donald Trump. The whole court ruled Monday that Trump has absolute and-or presumptive immunity for any of his official acts, after Democrats, through special counsel Jack Smith, claimed he improperly…
Jack Smith
Justice Clarence Thomas has warned that the Democrats in Joe Biden's administration apparently broke the law in their lawfare schemes to try to prosecute President Donald Trump.
The whole court ruled Monday that Trump has absolute and-or presumptive immunity for any of his official acts, after Democrats, through special counsel Jack Smith, claimed he improperly tried to influence the Department of Justice and Vice President Mike Pence in the aftermath of the 2020 election.
The ruling follows a decision from a federal grand jury, assembled as part of the Democrat party's "lawfare" against Trump, to indict Trump on four counts for events that happened during his president.
It was after the 2020 election, which was influenced by interference by both the FBI and the CIA, that Trump protested the outcome.
He also went to court to protest what he called the stolen election.
In fact, evidence now shows that the CIA knew that a letter from ex-intel officers claiming the Biden family scandals revealed in Hunte Biden's laptop were Russian disinformation was, in fact, a lie. Further, the FBI warned publications to suppress accurate reporting on that issue. Later polling showed those actions probably cost Trump the election and handed the White House to the now-"diminished" Joe Biden.
In a concurring opinion, Thomas explained there was a problem in their case that the Democrats addressed by ignoring the law.
He said Smith simply has no authority to do any prosecution, of anyone, much less Trump.
"Few things would threaten our constitutional order more than criminally prosecuting a former president for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course. As the court forcefully explains, the Framers 'deemed an energetic executive essential to . . . the security of liberty,' and our 'system of separated powers' accordingly insulates the president from prosecution for his official acts."
He said, "I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the attorney general purported to appoint a private citizen as special counsel to prosecute a former president on behalf of the United States. But, I am not sure that any office for the special counsel has been 'established by Law,' as the Constitution requires. By requiring that Congress create federal offices 'by Law,' the Constitution imposes an important check against the president—he cannot create offices at his pleasure.
"If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former president. No former president has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the special counsel’s appointment before proceeding.
"The Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides: '[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.'"
He said the simple process required is that officers are nominated by the president and confirmed by the Senate, except for limited situations involving "inferior officers."
"As relevant here, a 'Hea[d] of Department'—such as the attorney general— is one such actor that Congress may authorize 'by Law' to appoint inferior officers without senatorial confirmation."
Before that, however, the "Constitution requires that the underlying office be 'established by Law.'"
"The limitation on the president’s power to create offices grew out of the Founders’ experience with the English monarchy. The king could wield significant power by both creating and filling offices as he saw fit. He was 'emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices,'" Thomas wrote.
"If the special counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the special counsel is an officer.
In fact, the founders required that offices be created "by law" in order for an appointment to be made to that office. "In the past, Congress has at times expressly created offices similar to the position now occupied by the special counsel. Congress created an office for a 'special counsel' to investigate the Teapot Dome Scandal and pursue prosecutions. And, a statute provided for 'the appointment of an independent counsel' that we addressed in Morrison v. Olson. That statute lapsed, and Congress has not since reauthorized the appointment of an independent counsel.
"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. It is difficult to see how the special counsel has an office 'established by Law,' as required by the Constitution. When the attorney general appointed the special counsel, he did not identify any statute that clearly creates such an office."
"Even if the Special Counsel has a valid office, questions remain as to whether the attorney general filled that office in compliance with the Appointments Clause. For example, it must be determined whether the special counsel is a principal or inferior officer. If the former, his appointment is invalid because the special counsel was not nominated by the president and confirmed by the Senate, as principal officers must be. Even if he is an inferior officer, the attorney general could appoint him without presidential nomination and senatorial confirmation only if 'Congress . . . by law vest[ed] the appointment' in the attorney general as a 'hea[d] of department.'
"In this case, there has been much discussion about ensuring that a president 'is not above the law.' Respecting the protections that the Constitution provides for the office of the presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. 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. Those questions must be answered before this prosecution can proceed."
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