The Supreme Court’s ruling in Trump v. United States on Monday means that Donald Trump gets absolute immunity on many things, presumptive immunity on most things, and a series of tall hurdles that must be cleared to hold him accountable for anything.
In other words, there is very little chance of Trump ever facing consequences for the majority of his crimes, and even in the narrow circumstances where he could still be held accountable, prosecuting Trump is now much more difficult. This will have a direct effect on both federal cases against Trump.
But even the hurdles that this ruling creates aren’t enough for Justice Clarence Thomas. In his concurrence to the immunity ruling, Thomas goes out of his way to give Trump a get-out-of-all-charges-free card that even the majority opinion didn’t grant.
Trump faces a total of 44 charges in two federal cases.
One of these, the D.C. case about Trump’s attempts to overturn the 2020 election, now heads back to the district court where Judge Tanya Chutkin will determine which of the four charges in that case can still move forward.
In her dissent, Justice Kentanji Brown Jackson makes it clear that Trump stands a “fair shot” at finding immunity on several, if not all, counts because of the “multilayered, multifaceted threshold” that a court must now meet to get past immunity. One charge may be particularly difficult to continue after the court’s Friday ruling in Fischer v. United States, which severely tightened the requirements for finding obstruction.
In the other federal case, Trump faces 40 charges in the Southern District of Florida for mishandling classified documents and a conspiracy to obstruct the investigation. That case was regarded as a “slam dunk” for special counsel Jack Smith, but it has been repeatedly delayed by Trump-friendly decisions from Trump-appointed Judge Aileen Cannon.
In his concurrence in the immunity ruling, Thomas explains how Cannon could give Trump a pass on everything and dismiss the case.
Over the past two weeks, Cannon has been hearing arguments from Trump’s attorneys that special counsel Jack Smith wasn’t properly appointed. Trump’s legal team argued that Attorney General Merrick Garland had “set up a shadow government” in appointing Smith, which apparently resonated with the judge.
“That sounds very ominous,” Cannon said.
However, even Cannon has admitted that there are well-defined regulations concerning how the Department of Justice appoints and administers special counsels. Other courts have already ruled against Trump’s effort to eliminate the special counsel, and Cannon was reportedly skeptical about their efforts to attack an office going back over 150 years.
Still, even if the odds seemed long, trying to have Smith removed was definitely a gamble worth making for Trump. Winning on this point would mean that the Florida case could be thrown out. And even if Trump’s motion ultimately failed, Cannon’s agreeing to hear it would at least give Trump the gift of further delay.
Thomas’ concurrence doesn’t just signal his enthusiastic agreement with the idea that Trump should not be prosecuted; it includes what might as well be a letter directly to Cannon. And while Thomas’ concurrence is not binding, it could still be an invitation to bring this particular question—whether the role of the special counsel is unconstitutional—back to the Supreme Court.
I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
The first independent counsel was appointed by President Ulysses S. Grant in 1875. A dozen more were appointed before the Office of Special Counsel was formally instituted under the post-Watergate Ethics in Government Act in 1978. But that act expired in 1999. Since then, special counsels have been appointed under the guidelines of Title 28 of the Code of Federal Regulations.
Thomas appears to believe that every independent or special counsel since 1999 isn’t legitimate because they don’t hold an office created by law. That should come as a surprise to Hunter Biden, who was prosecuted by special counsel David Weiss.
But now Thomas is providing Cannon with a basis on which she can dismiss all charges brought by the special counsel against Trump, and assuring her that, should such an issue find its way to the Supreme Court, it would find at least one receptive justice.
A Supreme Court decision that all special counsels are unconstitutional might seem extremely unlikely. But then, so did the idea of the court giving a president nearly unfettered immunity. Three months ago, the idea that a president could shoot his opponents and still enjoy immunity was a joke. Now, as Jackson’s dissent warns, it seems well within the bounds of what the court awarded Trump.
No one should be acting as if this court is bound by common sense, the Constitution, or past rulings.
