Clarence Thomas joined the Supreme Court's bombshell majority opinion on Monday in favor of Donald Trump on the question of presidential immunity. The opinion focused on allegations that Trump illegally tried to undo the results of the 2020 election, but Thomas wrote a separate concurring opinion that could help Trump in a second legal matter—his classified documents case, reports the New York Times. Thomas questioned whether special counsel Jack Smith, who is handling both federal cases against Trump, was appointed legally.
Thomas suggested Attorney General Merrick Garland overstepped his authority in naming Smith to oversee the cases, arguing that Smith's office needs to be established by Congress and that Smith himself should have been confirmed by the Senate, per the Washington Post. "If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution," Thomas wrote. (He appeared to be referring to the election interference case, but his statement would apply to the classified documents case as well.) "A private citizen cannot criminally prosecute anyone," he wrote, "let alone a former president."
Thomas suggested that "lower courts" examine the question. In fact, the judge handling Trump's classified documents case—Aileen M. Cannon—already has been doing just that because Trump's attorneys raised the same argument, per Newsweek. Thomas' opinion "could embolden Cannon," a constitutional law expert tells the Post. It also suggests he wants the Supreme Court to eventually take up the matter. (More Clarence Thomas stories.)
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