"The President’s Immunity From Prosecution for His Official Acts Is the Law" - Clarence Thomas

II

It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.[3] See supra, at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).

None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.”

Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.)

As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of THOMAS, J.) (considering the meaning of “officer”).

Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).[4]

To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.

Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2.

Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”

Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

* * *

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty.

In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there 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. 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.

[3] In fact, Congress gave the Attorney General the power to appoint “additional officers . . . as he deems necessary”—but, only for the Bureau of Prisons. 18 U. S. C. §4041.

[4] Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.