Justice Clarence Thomas claims in concurring opinion that Jack Smith appointment unconstitutional

Justice Clarence Thomas's concurring opinion in the presidential immunity ruling may have given life to an argument by former President Donald Trump's legal team that the appointment of special counsel Jack Smith was unconstitutional. 

The argument against Smith's appointment will be heard in the near future by Judge Aileen Cannon, so the opinion by Thomas is very relevant to the current case.

“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”

The opinion was lambasted by legal experts on the left. Former prosecutor Chuck Rosenberg argued on MSNBC that Thomas's argument was "vapid" and noted that special counsel appointments have been challenged by courts in the past and been upheld.

Whose opinion trumps?

"This is an issue that has been litigated many times, and each time, the courts of the United States have determined that special counsels like Jack Smith are constitutionally permitted, that their funding is constitutionally permitted [and] they still are inferior officers to the attorney general of the United States," Rosenberg said.

Did Rosenberg consider whether the issue was ever litigated before the Supreme Court, however?

And did he consider whether the Supreme Court was as originalist as this one?

It seems to me that it may be Rosenberg's argument that is specious when measured against the opinion of a justice from the nation's highest court.

Trying to discredit the court

Of course, the left is doing everything it can to undermine and discredit the Supreme Court because of its conservative makeup, so Rosenberg and MSNBC figure they should throw their opinion up against the wall and see if it sticks.

Maybe the issue will get to the Supreme Court if there's anything left of the case after the new immunity ruling is applied.

The nature of Thomas's opinion as a concurring one suggests it may be a minority view, but if the issue were to come before the full court, others may also get behind it.

Rosenberg is correct that special counsels have long existed in American government, but Jack Smith was a private citizen living in the Netherlands, not a government official, when he was appointed by Attorney General Merrick Garland to investigate and then prosecute Trump.

Other legal experts including former Attorney General Edwin Meese have argued that Smith's appointment wasn't legal because he wasn't appointed by the president or confirmed by Congress.

Two of the cases against Trump could be completely dropped if a court decides that Smith was not lawfully appointed.