(Bloomberg) -- A Florida judge’s order dismissing the classified documents case against Donald Trump cited a recent opinion from Supreme Court Justice Clarence Thomas raising questions about the constitutionality of special counsel appointments.
As the Justice Department decides whether to appeal US District Judge Aileen Cannon’s decision, Thomas’ writings suggest the former president would have at least one sympathetic ear on the nation’s highest court if the fight reaches the justices.
As part of the Supreme Court’s July 1 ruling finding all presidents at least partially immune from prosecution for official acts, Thomas — a member of the court’s conservative wing — wrote a separate concurring opinion to express his concerns that Special Counsel Jack Smith might not have been lawfully tapped to lead investigations into former President Trump.
No other justice joined Thomas’ opinion at the time, but Cannon, who was appointed by Trump to the south Florida court, echoed his reasoning in her 93-page ruling on Monday dismissing the indictment. Cannon concluded that Congress hadn’t authorized Attorney General Merrick Garland to appoint Smith as special counsel, nor had lawmakers approved the indefinite appropriation of federal money to fund Smith’s work.
The immunity decision stemmed from a separate case that Smith is pursuing in Washington against Trump over his efforts to overturn the results of the 2020 presidential election. Thomas didn’t directly refer to the Florida case, but wrote broadly that he believed there were “serious questions” about whether Smith’s appointment was lawful.
“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.
Nixon-Era Case
The justice stopped short of declaring that he believed Smith’s appointment was unconstitutional, but wrote that he was “not sure” and that it was “difficult to see” how it was lawful.
Cannon cited Thomas’ concurrence in discussing historical limits on the executive branch’s power to appoint officials and rejecting the government’s interpretation of laws regarding appointment of “special attorneys.” She also cited Thomas in her analysis of the significance of a Richard Nixon-era Supreme Court ruling that involved a special prosecutor investigating a president.
Thomas has faced public criticism in the past for his involvement in cases related to the 2020 presidential election in light of his wife Ginni Thomas’ political support of Trump’s push to overturn the results. Some congressional Democrats and judicial ethics experts called on Thomas to recuse from election-related cases, though no party in any of the cases that came before the court made that request.
Cannon heard arguments on the appointment issue in late June, shortly before the Supreme Court released its decision in the immunity case.
Thomas telegraphed in his concurring opinion that even if Smith’s indictment survived the immunity fight, he believed the Supreme Court would need to weigh in again on the special counsel issue before the Trump cases could proceed to a trial. He wrote that when the Supreme Court in 1974 addressed the appointment of a special prosecutor during the Watergate scandal, it only made “passing reference” to the federal laws the Justice Department cited in defending Smith’s appointment.
“Perhaps there is an answer for why these statutes create an office for the Special Counsel,” Thomas wrote. “But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.”
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