Supreme Court Blow to Lawfare: Trump's Absolute Immunity, Special Counsel's Constitutionality Questioned

In a landmark ruling, the Supreme Court has granted former President Trump absolute immunity from criminal prosecution for official acts. However, Justice Clarence Thomas has raised questions about the constitutionality of Special Counsel Jack Smith's appointment, potentially casting a shadow over the unprecedented prosecution.

On Monday, the Supreme Court ruled 6-3 that the President has substantial immunity for official acts in office. This decision sends the case back down to lower courts to determine which acts at the center of Trump's case were official.

Supreme Court Blow to Lawfare: Trump's Absolute Immunity, Special Counsel's Constitutionality Questioned

The Court's opinion emphasized that the President is not above the law, but that Congress may not criminalize the President's conduct in carrying out official responsibilities. The system of separated powers demands an energetic and independent Executive.

In a separate concurring opinion, Justice Clarence Thomas highlighted concerns about the constitutionality of Special Counsel Jack Smith's appointment. Thomas questioned whether the Attorney General has the authority to create an office of the Special Counsel that has not been established by law.

Supreme Court Blow to Lawfare: Trump's Absolute Immunity, Special Counsel's Constitutionality Questioned

He argued that the Constitution requires Congress to create federal offices by law, imposing a check on the President's power. If there is no law establishing the office that Smith occupies, he cannot proceed with the prosecution.

Thomas acknowledged an amicus brief filed by Ed Meese, Attorney General under President Ronald Reagan, which argued that Smith was unconstitutionally appointed. Meese asserted that the Attorney General lacks the authority to appoint a private citizen as Special Counsel with extraordinary criminal law enforcement power.

Supreme Court Blow to Lawfare: Trump's Absolute Immunity, Special Counsel's Constitutionality Questioned

Furthermore, Meese argued that even if a Special Counsel office exists by statute, the Appointments Clause requires that principal officers be appointed by the President with Senate confirmation, which was not the case with Smith's appointment.

Thomas agreed with Meese's arguments, stating that it is difficult to see how Smith has an office "established by Law." He also raised questions about whether the Attorney General filled that office in compliance with the Appointments Clause, determining whether Smith is a principal or inferior officer.

Supreme Court Blow to Lawfare: Trump's Absolute Immunity, Special Counsel's Constitutionality Questioned

He concluded that these questions must be answered before the prosecution can proceed. Respecting the Constitution's separation of powers is essential to protect liberty and ensure that the President's actions are subject to appropriate oversight.

The Supreme Court's ruling on Trump's immunity strengthens his position in the ongoing prosecution. However, Justice Thomas's concerns about Smith's appointment introduce a potential obstacle to the case.

If the courts determine that Smith's appointment is unconstitutional, it could invalidate the entire prosecution, potentially protecting Trump from further legal challenges related to his actions as President.