Justice Clarence Thomas calls legitimacy of Jack Smith’s appointment as special counsel into question in immunity ruling concurrence

"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.

"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," he added.

Thomas notes that 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," 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."

Noting that an underlying office be "established by law" before any appointments can be made, Thomas wrote that "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. Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have. Instead, the Attorney General relied upon several statutes of a general nature. 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."

"Even if the Special Counsel has a valid office," Thomas added, "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.'"

"Whether the Special Counsel’s office was 'established by Law' is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty."

Thomas wrote that there were "serious questions" as to whether Attorney General Merrick Garland "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. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee."