Supreme Court Justice Clarence Thomas has a valid question over whether special counsel Jack Smith has the authority to prosecute former President Donald Trump, considering the Senate never confirmed him as a substitute U.S. Attorney, former acting Attorney General Matthew Whitaker told Newsmax on Sunday.
"There is an appointments clause issue," Whitaker told Newsmax's "Sunday Report." "I think as we listen to that almost three hours of the Supreme Court and their questioning it was pretty clear that they had a lot of doubts about Jack Smith's theory of this case."
The court, he added, "poked holes pretty impactfully on his entire case, not only in his theory of presidential immunity, but I think Clarence Thomas has for sure been keen on this issue of whether Jack Smith's appointment is valid under the Constitution."
And, Whitaker said that if five Supreme Court justices agree with Thomas' question about Smith's appointment, there will be a "massive problem" in bringing Trump to trial.
However, there have been several special counsels who have been "pulled off the street" but not confirmed by the Senate or appointed by a president, he pointed out.
Trump, meanwhile, has been "politically targeted" by Biden, his 2024 rival, and is being kept in court while Biden is free to campaign nationwide, said Whitaker.
The Supreme Court, in Trump's case, will have to determine whether he is entitled to absolute immunity or "some bifurcation between official acts and personal acts," and that will be difficult, Whitaker said.
"[When you are] the president, every decision you make should be official, so I think it's going to be very hard for them to try to pick and choose that… It's very hard to select on an indictment's mere face what would be the difference between official and personal action."
Meanwhile, there is "certainly presidential immunity" for official acts in office, said Whitaker.
"They need some extraordinary levels of immunity in order to do their jobs and make the tough decisions they make on a daily basis," he said.
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