Clarence Thomas has struck again.
To his impressive list of recent supreme court victories – abolishing the right to an abortion, eradicating affirmative action, undermining federal regulations, and more – the ultraconservative justice can now add thwarting the criminal prosecution of Donald Trump for hoarding classified documents.
On Monday, Judge Aileen Cannon astonished the judicial world by dismissing the case. She did so based on a widely discredited legal argument that the special counsel who brought the prosecution, Jack Smith, had been improperly appointed.
The argument, initially aired by the former US president’s lawyers, had received scant support in judicial circles, given that stretching back a quarter of a century it has been repeatedly rejected by the courts. But there was one jurist who encouraged Cannon to pursue such contrarian thinking: Thomas.
Two weeks before Cannon’s stunning dismissal, Thomas essentially prodded her into making the move. In a concurring opinion to Trump v US, the US supreme court ruling awarding the former president immunity over his “official acts” in the lead-up to the January 6 insurrection, the hard-right justice sketched a legal roadmap that Cannon then duly followed.
Thomas pulled out a line from the appointments clause of the US constitution and used it to argue that the special counsel lacked authority to pursue his two federal criminal prosecutions against Trump. He claimed that in the absence of a law from Congress specifically establishing the role of special counsel, Smith’s appointment was invalid.
As reported last week, Thomas has long used his concurring opinions to signal to outside parties that he would like them to pursue his extreme legal theories. In this case, though he did not mention Cannon by name, he left little to the imagination.
He invited the “lower courts” to look into the “essential questions concerning the special counsel’s appointment before proceeding” with Smith’s prosecutions.
Cannon obediently adopted Thomas’s radical thinking, subsuming it into her 93-page judgment almost to the letter. She cites his concurring opinion in Trump v US at least three times.
Her basic justification for dismissing the criminal case against Trump, in which the former president is alleged to have hoarded secret White House documents in his Mar-a-Lago resort, is identical to Thomas’s. She argues that no statute exists giving Merrick Garland, US attorney general, the “authority to appoint a special counsel like Smith”.
Cannon’s reasoning – just like Thomas’s – flies in the face of decades of legal precedent. Courts have considered numerous cases relating to special prosecutors, from the 1970s Watergate scandal to the appointment of Robert Mueller, the special counsel investigating Russian meddling in the 2016 election.
In every case, judges have upheld the principle that attorneys general have the authority, under the power vested in them by the president, to appoint special prosecutors.
Legal observers responded to the touchdown pass thrown by quarterback Thomas to receiver Cannon with barely disguised incredulity. Leah Litman, a law professor at the University of Michigan law school, wryly quipped on social media that “Justice Thomas’s ‘Cannon-currence’ worked”.
Melissa Murray, a law professor at New York University law school, posted on X that Thomas had “laid the table and Judge Cannon took a seat”.
As Murray noted, Thomas has now participated in two highly contentious legal decisions, released two weeks apart, upending both federal prosecutions of Trump. Thomas was one of the six rightwing justices who voted to give the former president unprecedented immunity protections relating to his conspiracy to overthrow the 2020 election; and now he has presented Cannon with the arguments that she used to dismiss the classified documents case.
That is bold action from a justice who is already being accused of conflict of interest in his dealings with Trump – not to mention the many other ethics scandals that have led Democrats in Congress to call for his investigation and impeachment. Thomas’s wife, Ginni, is heavily implicated in the 2020 election subversion conspiracy, and yet the justice has consistently refused to recuse himself from any January 6 case.
