Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Opinion

Clarence Thomas has it right on presidential immunity case

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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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On July 1, the United States Supreme Court ruled in a 6-3 majority opinion for Trump v. United States that American presidents have absolute immunity from prosecution for actions that fall within their constitutional duties. The ruling asserts that evidence of official criminal acts committed by a president cannot even be presented in any U.S. court.

Among other serious concerns, legal observers have speculated that presidential orders to conduct assassinations on U.S. officials, politicians and citizens, or to stage violent coups on U.S. soil, might now be legal. While the conservative majority dismissed those fears, liberal Supreme Court Justice Sonia Sotomayor warned in her dissent that “the president is now a king above the law.”

Watch the above video as Straight Arrow News contributor Ben Weingarten defends the court’s ruling and then explores questions raised by Justice Clarence Thomas about whether or not the prosecution even had the legal authority to bring this case forward in the first place.


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The following is an excerpt of the above video:

Justice Thomas argues convincingly that Congress never created special counsel Jack Smith’s office, and that even if it did, Attorney General Merrick Garland may not have lawfully appointed Smith to it.

Congress has in the past created special and independent counsels by statute. AG Garland failed to identify any statute “that clearly creates” Smith’s office. In his concurrence, Justice Thomas notes that Garland did rely on “several statutes of a general nature” to justify special counsel Smith’s appointment. But the relevant portions of the U.S. code that Garland relied on to justify the appointment seem dubious, in Justice Thomas’s reading. 

Sections 509 and 510 of Title 28 of the U.S. Code deal with the attorney general’s general functions and “ability to delegate authority to ‘any other officer, employee, or agency.’”

Section 515, dealing with specially appointed attorneys, concern those tabbed by the AG “under law,” suggesting, Justice Thomas says “that such an attorney’s office must have already been created by some other law.”

Section 533 covers the attorney generals’ power to “appoint officials…to detect and prosecute crimes against the United States.” Whether or not “officials” are equivalent to “officers,” Justice Thomas writes, “this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel.” Why? Because the section falls within a chapter pertaining to the FBI.

Legal Eagles were transfixed by the Supreme Court’s last day ruling in Trump v. United States. But for my money, the real blockbuster was not the majority opinion. But Justice Clarence Thomas is taking of a ruling regime to the woodshed for its law fair Inquisition against Donald Trump. He did so via concurrence not so much and affirming the majority’s view regarding the limits of former President Trump’s immunity from prosecution, but challenging whether the prosecution itself by Joe Biden’s Justice Department and an of his predecessor, and leading competitor was legal itself. That is He questions whether the prosecution is an unconstitutional Sham. In this case, there’s been much discussion about ensuring that a president is not above the law, Justice Thomas wrote, but as the court explains, the President’s immunity from prosecution for his official acts, is the law. He continues that by contrast, I’m not sure that any office for the special counsel has been established by law as the Constitution requires. If this unprecedented prosecution is preceded, it must be conducted by someone duly authorized to do so by the American people. Unquote. The logic is straightforward. The constitutions appointment clause dictates that Congress creates offices and presidents fill them with the advice and consent of the Senate, or if Congress grants them the authority of the President, courts of law or heads of departments may appoint inferior officers. This distinguishes our system from the British monarchy that we broke from. It’s an essential illustration of the separation of powers baked into our constitutional order. Justice Tom has argued convincingly that Congress never created special counsel Jack Smith’s office, and that even if it did, Attorney General Merrick Garland may not have lawfully appointed Smith to it. Congress has in the past created special and independent counsels. By statute, ag Garwin failed to identify any statute, quote that clearly creates unquote Smith’s office. In his concurrence, Justice Thomas notes that garland did rely on several statutes of a general nature to justify Special Counsel Smith’s appointment. But the relevant portions of the US Code that garland relied on to justify the appointment seem dubious, and justice Thomas’s reading sections 509 and 510 of title 28 of the US Code, deal with the Attorney General’s general functions and ability to delegate authority to any other officer, employee or agency. Section 515. Dealing with specially appointed attorneys concern those tab by the Ag under law, suggesting Justice Thomas says that Shuster an attorney’s office must have already been created by some other law. Section 533 covers the Attorney General’s power to appoint officials to detect and prosecute crimes against the United States. Whether or not officials are equivalent to officers, Justice Thomas rights, this provision would be a curious place for Congress to hide the creation of an office for a special counsel. Why? Because this section falls within a chapter pertaining to the FBI. Separately, Justice Thomas notes in a footnote, the Congress has granted the attorney general power to appoint additional officers as he deems fit in the past, but only to the Bureau of Prisons since the legislative branch circumscribe the appointment power historically, one would think it would have been apt to specify it if it intended that the attorney general could appoint a special counsel like Jack Smith. Well, presidents have appointed special prosecutors previously without pointing to a specific authorizing statute. Justice Thomas concedes the Supreme Court has never ruled on the constitutionality of those appointments. Justice Thomas concludes that respecting the protections that the constitution provides for the office of the presidency secures liberty. In that same van. The Constitution also secures liberty by separating the powers to create and fill offices. And there are serious questions whether the Attorney General has 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 separation of powers in all its forms. Ellis we risk rendering its protection of liberty a parchment guarantee. Judge Eileen cannon who is overseeing Special Counsel Smith’s classified documents case has shown a willingness to check the Justice Department’s work before if any judge is most likely to hear justice Thomas’s clarity on call to rule on a most basic constitutional matter. It is likely to be judge cannon surely to the chagrin of her left wing critics, despite the courts checking this term of a hyper political and weaponized button Justice Department, both in the presidential immunity case and in the Fisher decision smacking down the DOJ for just torturing of obstruction of an official proceeding to hang it around the necks of January 6 defendants. It remains remarkable that merely one justice stepped into the breach here to raise his And and demand, the courts scrutinize Special Counsel Jack Smith’s office itself. Justice Thomas’s devotion to the Constitution deserve celebration, this Independence Day, but that he stood alone here’s a reminder that the courts are no panacea to what ails our republic. That’s so many pivotal questions for the Supreme Court reflects a dereliction of duty from the legislative branch, which must act vigorously to defend our rights.

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