The Supreme Court's immunity ruling has dealt a devastating blow to Jack Smith and his furious push to prosecute Donald Trump.
While the court's ruling is likely to delay Smith's January 6th trial past the 2024 election, the Supreme Court also entertained arguments that Smith wasn't appointed legally in the first place.
In a sharp concurring opinion, Justice Clarence Thomas questioned whether Smith, a private citizen, even has the legal authority to prosecute a U.S. president.
The issue of Smith's appointment has already come before the judge in Trump's classified documents case, Aileen Cannon. Legal analysts expect Thomas' opinion to have an impact.
“This issue is already before Judge Cannon in Smith’s classified documents case against Trump, but Justice Thomas’ decision makes it all the more likely this issue will soon be front and center and possibly before the full Supreme Court,” former federal prosecutor Joseph Moreno told the Daily Caller.
In his concurrence, Thomas wrote that Attorney General Merrick Garland "purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States."
If Smith is what is called a "principal officer," then his appointment required Senate confirmation. On the other hand, if Smith is an "inferior officer," Garland could appoint him on his own only with explicit authorization from Congress, Thomas argued.
Thomas was also skeptical that Smith's office of Special Counsel was created lawfully.
Thomas urged "lower courts" to resolve the matter before Smith continues.
"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," he wrote.
Even if Smith is not disqualified, he is running out of time to prosecute Trump before the election.
The Supreme Court struck out a significant part of Smith's January 6th case, finding U.S. presidents are immune for their official acts. The ruling is understood to have derailed Smith's prosecution, since the trial judge now has to sort through the indictment to determine which parts are still valid.
Smith is also pursuing the documents case in Florida, but that has also been postponed indefinitely over various legal issues.
The Washington Post reported Wednesday that Smith plans to keep pursuing Trump even if he wins the presidency. That is, Smith plans to run out the clock until the moment Trump is inaugurated.
Talk about desperate.
