Clarence Thomas strikes again.
On the heels of his impressive string of recent Supreme Court victories — repealing abortion rights, eradicating affirmative action, gutting federal regulations and more — the ultraconservative justice can now also frustrate Donald Trump’s hoarding Criminal prosecution of confidential documents.
Judge Erin Cannon shocked the legal community on Monday by dismissing the case. She did so based on a widely disputed legal argument that Jack Smith, the special prosecutor who brought the case, was improperly appointed.
This argument was originally made by the former US president’s lawyers, but it did not find much support in judicial circles, as it has been rejected by the courts several times over the past twenty-five years. But there was one legal scholar who encouraged Cannon to pursue this contrarian thinking: Thomas.
Two weeks before Cannon’s shocking firing, Thomas essentially goaded her into taking action. Cannon formally The roadmap was followed.
Thomas removed a line from the U.S. Constitution’s Appointments Clause and used it to argue that the special counsel lacks the authority to pursue two federal criminal indictments against Trump. He claimed that Smith’s appointment was invalid because Congress did not have a law specifically establishing the special counsel’s role.
As reported last week, Thomas has long used his concurring opinions to signal to outsiders that he wants them to pursue his extreme legal theories. In this case, while he didn’t mention Cannon’s name, he left little to the imagination.
He invited “lower courts” to investigate “fundamental questions about the special counsel’s appointment” before charging Smith.
Cannon meekly adopted Thomas’s radical ideas and incorporated them almost verbatim into her 93-page judgment. She cited him unanimously at least three times in “Trump v. United States.”
Her rationale for dismissing the criminal case against Trump, in which the former president is accused of hoarding secret White House documents at his Mar-a-Lago resort, is the same as Thomas’s. She argued that no statute gives U.S. Attorney General Merrick Garland “the power to appoint a special prosecutor like Smith.”
Cannon’s reasoning — like Thomas’s — flies in the face of decades of legal precedent. The court has heard numerous cases involving special counsels, from the Watergate scandal of the 1970s to the appointment of special counsel Robert Mueller to investigate Russian interference in the 2016 election.
In each case, the judges upheld the principle that the attorney general has the authority to appoint special prosecutors under powers vested in him by the president.
Legal observers cast thinly veiled suspicion on quarterback Thomas’ touchdown pass to receiver Cannon. Leah Littman, a law professor at the University of Michigan Law School, joked on social media, “Justice Thomas’s ‘cannon currency’ worked.”
Melissa Murray, a law professor at New York University School of Law, posted on X that Thomas “set the table and Judge Cannon took her seat.”
As Murray points out, Thomas is now involved in two highly controversial legal decisions, issued two weeks apart, overturning two federal indictments against Trump. Thomas was one of six right-wing justices who voted to grant the former president unprecedented immunity protections from his conspiracy to overturn the 2020 election; now he’s presented Cannon with her argument to dismiss the classified documents case.
It’s a bold move by a justice who has already been accused of conflicts of interest in his dealings with Trump, not to mention the many other ethics scandals that have led congressional Democrats to call for his investigation and impeachment. Thomas’ wife, Ginni, has been heavily implicated in the 2020 election subversion plot, but the judge has refused to recuse herself from any of the Jan. 6 cases.
