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WASHINGTON, D.C. (LifeSiteNews) — U.S. Attorney General Merrick Garland did not have the constitutional authority to create the Special Counsel position from which Jack Smith is currently prosecuting former President Donald Trump, conservative Justice Clarence Thomas argued in a concurring opinion to the U.S. Supreme Court’s Monday ruling affirming a degree of legal immunity for acts connected with a president’s official duties.

The nation’s highest court ruled 6-3 that “the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” while he “enjoys no immunity for his unofficial acts, and not everything the President does is official.” The decision sent the federal prosecution of Trump for attempting to delay certification of the official 2020 election results back to Federal District Court Judge Tanya Chutkan to sort out which of Trump’s actions at issue constituted official acts connected to presidential duties.

While most reactions to the decision focused on the nature and ramifications of presidential immunity, Thomas’s concurring opinion (starting on Page 52 of the ruling’s official pdf) explores a separate but no less consequential legal question: whether the U.S. Constitution allows executive branch officials such as the attorney general to create offices with prosecutorial power in the first place.

“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,” Thomas writes. “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. No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people.”

Thomas explains that most “Officers of the United States” can only be installed by the president himself, with Senate approval, to offices specifically created by Congress. The Constitution creates a limited exception in allowing Congress to “by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.” However, even those exceptions can only be to fill offices that have been created by Congress.

“The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy,” Thomas went on. “The King could wield significant power by both creating and filling offices as he saw fit. He was ‘emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices’ […] By keeping the ability to create offices out of the President’s hands, the Founders ensured that no President could unilaterally create an army of officer positions to then fill with his supporters. Instead, our Constitution leaves it in the hands of the people’s elected representatives to determine whether new executive offices should exist.”

While Congress has at times throughout history created positions comparable to the Special Counsel’s Office, Thomas notes that it has not formally reauthorized such a position since the Teapot Dome bribery scandal of the 1920s. Further, “none of the statutes cited by” Garland in his November 2022 appointment of Smith “appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.”

“[T]here 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,” Thomas concludes. “Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.”

No other justices signed on to Thomas’s concurring opinion, meaning that as a practical matter the Court is not likely to invalidate Smith’s prosecutions as a whole anytime soon. Even so, the opinion of one of the most respected legal authorities in conservative circles provides Trump’s attorneys with a potentially potent new argument to focus on in responding to whatever election-related charges survive in the wake of Monday’s majority decision, as well as in challenging his prosecution for retaining classified documents at his Mar-a-Lago home, which Smith is also prosecuting.

For the past year, Trump’s ongoing criminal prosecutions (and one conviction so far) on various charges across the country were seen as major liabilities for his election prospects. However, deep dissatisfaction with incumbent Democrat President Joe Biden’s job performance, paired with ongoing and steadily-increasing doubts about the 81-year-old commander-in-chief’s mental infirmity and physical stamina, have made the race far more competitive, with Trump narrowly leading the popular vote and comfortably leading Electoral College projections.

Biden’s problems came to a head during the first presidential debate between himself and Trump last Thursday, after which many Democrats and their mainstream media allies began openly expressing panic and calling on Biden to drop out in favor of a new nominee, which the Biden camp is so far publicly resisting.