Benjamin Weingarten Profile picture
Jul 1 5 tweets 3 min read Read on X
Justice Thomas' concurrence in Trump v. U.S. is hugely significant. He questions whether Special Counsel Jack Smith's office is constitutional.

"If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President." supremecourt.gov/opinions/23pdf…
Justice Thomas:

"We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be 'established by Law.' As James Madison cautioned, '[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.' 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord."
Justice Thomas launches a legal missile at AG Merrick Garland:

"It is difficult to see how the Special Counsel has an office 'established by Law,' as required by the Constitution"

"...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"

"...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"Image
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Justice Thomas: "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...

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."
My write-up of Justice Thomas's concurrence questioning the constitutionality of Special Counsel Jack Smith's office/appointment @FDRLST thefederalist.com/2024/07/02/cla…

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More from @bhweingarten

Jul 15
Judge Cannon just absolutely eviscerated Joe Biden's Justice Department:

"Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment— 28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise." storage.courtlistener.com/recap/gov.usco…
AG Garland could've been a Supreme Court Justice.

"The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers."
Judge Cannon: "If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause"
Read 11 tweets
Jun 27
In SEC v. Jarkesy it appears SCOTUS struck a blow against the administrative state.

"We consider whether the Seventh Amendment permits the SEC to compel respondents to defend themselves before the agency rather than before a jury in federal court," the Majority writes.

It concludes a defendant is entitled to a trial by jury -- not have to go in front of a court where the administrative state plays judge, jury, and executioner
What Justice Gorsuch describes in his concurrence reflects the inherently tyrannical nature of the administrative state supremecourt.gov/opinions/23pdf…
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Justice Gorsuch -- with whom Justice Thomas concurred -- details more administrative state tyranny. We've been de-sensitized to an unelected, unaccountable, awesomely powerful branch of government that's, shall we say, hard to square this with the Constitution supremecourt.gov/opinions/23pdf…Image
Read 4 tweets
Jun 26
Murthy v. Missouri
Perhaps the most significant statement in the otherwise disappointing but predictable majority opinion comes in a footnote.

"Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action."Image
The idea that the plaintiffs couldn't prove traceability -- despite overwhelming evidence of government officials and their cutouts working in myriad ways to suppress the very speech at issue reveals a lack of knowledge of the full record IMO from the majority
Worse, the default standard seems to be that government can do a whole host of things to abridge our speech en masse, and the bar is incredibly high for anyone to do anything about it. That's the fundamentally disastrous part of the standing cop-out
Read 23 tweets
Apr 10
Greatly enjoyed speaking with, and learning from, @karaafrederick @MikeBenzCyber yesterday @Heritage @OversightPR "Weaponization of U.S. Government Symposium" emceed by @jasoninthehouse and organized by @MHowellTweets youtube.com/live/gSG21eAqc…
I wanted to amplify a few points core to the discussion yesterday in a thread.

First, it's critical to understand CISA's role as nerve center of fed-led speech policing. The switch from targeting foreign malign actors to domestic Wrongthinkers; re-characterization of tweets critical of Official Narratives as national security threats to be neutralized via censorship; and the fact the Censorship Regime emerges from the powerful and secretive national security apparatus are all vital points to understand and internalize weingarten.substack.com/p/full-testimo…
Second, the problem set is daunting. Even if we were to map out every federal government-led censorship office, restructure and defund them all, and impose severe penalties for government officials to deter any such behavior going forward, we still have to deal with the cutouts, not to mention state and local deputizers of social media speech police. But government money is no doubt a key driver of the Censorship Regime, and eliminating it would strike a severe blow to it realclearinvestigations.com/articles/2023/…
Read 7 tweets
Mar 19
🧵My impression walking out of SCOTUS yesterday, having witnessed oral arguments in Murthy v. Missouri was demoralization. The Censorship Industrial Complex proved itself in the case to have cajoled, coerced, and colluded with social media platforms to censor Wrongthinking Americans en masse, and yet that the government's "partners" abridged clear protected political speech wasn't clearly presented and argued. Whether we will retain anything resembling a First Amendment likely hinges on Chief Justice Roberts and Justices Kavanaugh and Barrett. Herein, a thread I will update as I parse the transcript🧵 nypost.com/2024/03/18/opi…
Multiple times the U.S. government lamented how the plaintiffs in the case were using the courts to "audit" their efforts to conspire with social media platforms to censor us on the Hunter Biden laptop story, election integrity and outcomes, and COVID. Unmentioned is that without Murthy v. Missouri we would've never known about this conspiracy to kill our First Amendment. Is the government's issue with the audit or with what the audit revealed about its depredations?Image
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Principal Deputy Solicitor General Brian Fletcher sought to make this case about the government using mere "persuasion" (legal) versus "coercion" (illegal) to pressure social media companies to violate the First Amendment on its behalf as deputized speech police.

While there was a raft of evidence of coercion, Philip Hamburger -- whose @NCLAlegal represents some of the plaintiffs in Murthy -- persuasively makes the case that that isn't the right standard. As the plaintiffs wrote in their brief, citing Hamburger: "The First Amendment does not require a strict showing of explicit coercion, but capaciously protects the freedom of speech from any 'abridging' (i.e., diminishing) of that freedom."Image
Read 57 tweets
Mar 9
🧵On Foreign Interference in U.S. Elections From Mass Illegal Immigration
With America having suffered an invasion by design under President Biden, @elonmusk and others have grown conscious of how the influx of illegal aliens impacts our political system. What follows is a brief thread on this illegitimate practice and how Democrats have fought tooth & nail dating back to the Trump years to maintain it -- including last night in striking down a @SenatorHagerty-led amendment
The Constitution calls for a census count to apportion representatives -- to determine the number of House seats and therefore presidential electors granted each state -- based on the "whole number of persons in each state excluding Indians not taxed." That count is also used to allocate hundreds of billions of dollars in federal funding annually. Do illegal aliens count? thefederalist.com/2019/02/21/don…
Arguably the number of illegal aliens in a state shouldn't be used to give it greater political representation in Washington, or to get more federal funds redistributed down to it. thefdrlst.wpengine.com/2018/03/01/lef…
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Read 11 tweets

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