“Not clothed in the authority of the federal government, Jack Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos.”
Former Attorney General Ed Meese
While Justice Sonia Sotomayor made outrageously bizarre allegations that the president is now a king who could kill opponents, Justice Thomas’s brilliant opinion on the appointment of Jack Smith is going under the radar. Additionally, former attorney general Meese’s comments as a friend of the court have been swept aside. The media is oddly disinterested.
Both commented on Jack Smith’s illicit appointment, and Judge Aileen Cannon will consider that in the documents case. She is currently reviewing the legitimacy of Jack Smith’s appointment.
Former Attorney General Ed Meese
In an amicus brief filed in the case before the high court, Ed Meese, attorney general under President Ronald Reagan, argued that the court should reject Special Counsel Jack Smith’s request because he was unconstitutionally appointed in the first place.
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the brief stated.
“Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” he argued.
Merrick Garland cited statutory authority for Smith’s appointment, none of which Meese argued “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
Justice Clarence Thomas
In a separate concurring opinion, Justice Clarence Thomas looked to “highlight another way in which this prosecution may violate our constitutional structure” – the appointment of Jack Smith as special counsel.
Thomas wrote, “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,” Thomas added.
“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,” he wrote before focusing on Smith’s appointment.
The Improper Appointment
“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,” Thomas wrote.
He wrote that the Constitution only allows for “a limited exception for the appointment of inferior officers.”
“Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law.'”
“The Constitution itself creates some offices, most obviously that of the President and Vice President. Although the Constitution contemplates that there will be ‘other Officers of the United States, whose Appointments are not herein otherwise provided for,’ it clearly requires that those offices ‘shall be established by Law,” he wrote.
“None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose,” he wrote.
Private Citizens Cannot Prosecute a President on Behalf of the United States
Thomas explained that 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.”
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” he said.
“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,” he said.
Thomas added that “a private citizen cannot criminally prosecute anyone, let alone a former President.”
Alina Habba also weighed in.
Alina Habba on Special Counsel Jack Smith: His position was purely, frankly, political. He has absolutely no merit and absolutely no right to prosecute a former president, let alone a turkey sandwich.@AlinaHabba @ShaunKraisman @EmmaRechenberg pic.twitter.com/DaWOTJrSmZ
— NEWSMAX (@NEWSMAX) July 1, 2024
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