Justice Clarence Thomas’s concurrence in Trump v. United States not only affirmed the majority’s ruling that a former president is  “presumptively immune” for official acts. It also ratchets up judicial attention on Special Counsel Jack Smith’s appointment, an issue that hangs in the balance before Judge Aileen Cannon. Is Justice Thomas sending a constitutional bat signal?  

The court’s senior justice writes separately “to highlight another way in which this prosecution may violate our constitutional structure.” That possible defect stems not from the charges handed up by Mr. Smith but from how he assumed his position. The special counsel was named by Attorney General Garland, not nominated by the president or confirmed by the Senate.

Another special counsel, David Weiss, now prosecuting Hunter Biden, had been confirmed by the Senate for the United States attorney role he held prior to his elevation. Mr. Smith, who was prosecuting war crimes at the Hague when he was tapped by Mr. Garland to investigate Trump, has never been confirmed by the Senate. He was an acting U.S. attorney for a few months in 2017, which did not require confirmation. 

A law professor, Joshua Blackman, who has argued before Judge Cannon that Mr. Smith’s appointment is unconstitutional on separate grounds, writes to the Sun that Justice Thomas’s concurrence “may be of some interest” to that judge. He notes that the justice “has advanced many of the arguments” made by Attorneys General Meese and Mukasey. Those luminaries contend that the special counsel is a principal officer requiring confirmation.

The Appointments Clause ordains that 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.”

The attorneys general — and now Justice Thomas — take the position that Mr. Smith is an “officer of the United States” and therefore he either needed to be confirmed or for his appointment by General Garland to be “established by Law.” Otherwise, Justice Thomas writes, “a private citizen cannot criminally prosecute anyone, let alone a former President.” 

Mr. Smith argues that he is an inferior officer who is supervised and can be fired by Mr. Garland, meaning that the rigamarole of confirmation is not required. Justice Thomas explains that 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.”

This proliferation of offices so irked the Founders that in the Declaration of Independence they accused George III of having “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” The American president, Justice Thomas explains, can fill positions, but not create them. That’s why they must be “established by Law.” Whether Mr. Smith’s appointment meets this standard, the jurist maintains, must be decided before the prosecution can proceed.

Justice Thomas writes that “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.”  

This is not the first time that Justice Thomas has signaled an interest in the Appointments Clause. During oral arguments in this case, in April, the justice asked Trump’s attorney John Sauer if the 45th president planned to contest Mr. Smith’s appointment. The attorney responded  “Not directly.  We have done so in the Southern District of Florida case, and we totally agree” with the analysis provided by Generals Meese and Mukasey.

Judge Cannon just last week heard a full day of oral arguments on this question, which makes Justice Thomas’s surfacing of it in this case all the more remarkable. Any ruling on the validity of Mr. Smith’s appointment will likely be appealed by the losing side to the United States Court of Appeals for the 11th Circuit. A further request for review would be addressed to the high court.

While Justice Thomas’s concurrence indicates that he, for one, would be inclined to rule against Mr. Smith’s appointment, there is little indication of how many of his colleagues share that sentiment. Justice Brett Kavanugh could be a potential ally on this front — during oral arguments, he called Morrison v. Olson, which upheld the constitutionality of a precursor to the special counsel, “terrible for the presidency” and “one of the court’s biggest mistakes.”

Justice Thomas acknowledges that his predecessors “gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon but it provided no analysis.” The court there, though, did find that the “Attorney General, by regulation, has conferred upon the Special Prosecutor unique tenure and authority to represent the United States.” Such a precedent would need to be distinguished — or overruled.