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What if Mueller appointment is 'totally unconstitutional'?

WASHINGTON – FBI Director Robert Mueller testifies during a hearing before the House Judiciary Committee July 26, 2007 on Capitol Hill in Washington, DC. The hearing was held to examine whether the FBI have misused their power. (Photo by Alex Wong/Getty Images)

WASHINGTON – President Trump is hardly alone in suggesting the appointment of Special Counsel Robert Mueller was and remains “totally unconstitutional,” which begs the question: What might happen should a lower court case on the matter ever reach the Supreme Court following the presumed confirmation of Brett Kavanaugh?

Just days after Trump fired FBI Director James Comey, Deputy Attorney General Rod Rosenstein announced that grounds existed to appoint a special counsel.

In his order appointing Mueller III as special counsel, Rosenstein limited Mueller’s role to leading “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including … any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation; and any other matters within the scope of 28 C.F.R. § 600.4(a).” That last bit refers to a part of the federal code that says that the jurisdiction of a special counsel is to include “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

Several law scholars have made cogent arguments the appointment was flawed. Lower court cases affirming constitutionality have been questioned, including Steven Calabresi, one of the founders of the Federalist Society and a law professor at Northwestern.

Calabresi argues that under the Appointments Clause of the Constitution, an official overseeing the probe would be a “principal officer,” and thus would have to be someone who was appointed by the president and confirmed by the Senate.

“[Mueller] is not a principal officer, and since he has not been nominated by the president and confirmed by the Senate, everything he has done since May 1, 2017 has been unconstitutional and has been illegal,” he said.

Theoretically, Mueller reports to Rosenstein, since Attorney General Jeff Sessions recused himself from the investigation. But even though Rosenstein was confirmed by the Senate – making him a “principal officer” – Calabresi argues that he’s not supervising Mueller’s work closely enough to count under the Appointments Clause.

The stakes of the argument are high. If Mueller’s appointment really is unconstitutional, then Calabresi argues all of the actions he’s taken since his appointment in May of 2017 are “null and void,” including “all of the indictments he has brought, all of the plea bargains he has entered into, all the searches he has conducted, his phone logging of Michael Cohen and subsequent of referral of Michael Cohen to the Southern District of New York for prosecution, and any other governmental actions he has taken.”

“With all due respect to the statute and to the CFR [Code of Federal Regulations], I think Mueller is much too important an officer to be called an inferior officer,” he said. Since his appointment more than a year ago, Mueller has indicted 19 people and secured five guilty pleas. It’s all, according to Calabresi, the “fruit of a poisonous tree.”

Rosenstein has maintained he has the authority to remove Mueller. But Calabresi argued Mueller “is investigating a large number of people and has already charged defendants with many different kinds of crimes, including – as in Manafort’s case – ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. … He is behaving like a principal officer.”

Douglas Kmiec, who teaches constitutional law at Pepperdine University, made similar arguments in an op-ed published in the Los Angeles Times.

“The courts have indicated that where a federal officer operates largely in an unsupervised fashion his or her appointment must be as a principal officer,” he said. “While it cannot be said that there is any single court ruling explicitly declaring unconstitutional an administratively appointed special counsel under the DOJ regulations, there are substantial questions that can be raised about the lawfulness of Mr. Mueller’s appointment,” said Kmiec, who was a principal deputy and then head of the Office of the Legal Counsel at the Department of Justice from 1985 to 1989. “Hence, while it is certainly overstatement for the president to simply declare that the special counsel is unconstitutional, it is also true that the president has a number of significant inquiries that can be raised in litigation based upon the separation of powers, the appointments clause, and post Morrison case law (the Supreme Court’s Edmond’s decision) which stands for the proposition that officers with significant authority must be appointed as principal, and not as inferior officers.”

Trump, along with his lawyers Rudy Giuliani and Jay Sekulow, have claimed that Mueller’s investigation violated the Constitution. Most notably, Trump said in an early June tweet that Mueller’s appointment was “totally UNCONSTITUTIONAL.”

Last month, Judge Dabney Friedrich, who serves at the trial-court level in D.C. federal court, ruled against dismissal on Constitutional grounds in Mueller’s case against Concord Management and Consulting, alleged Russian social-media propagandists.

“The appointment does not violate core separation-of-powers principles,” Friedrich wrote. “Nor has the Special Counsel exceeded his authority under the appointment order by investigating and prosecuting Concord.”

Friedrich cited opinions by three other federal judges – Amy Berman Jackson, who oversaw Manafort’s criminal foreign lobbying case; T.S. Ellis, who oversees Manafort’s financial fraud case; and D.C. District Court Chief Judge Beryl Howell – to back up her decision.

All three judges also denied requests to invalidate Mueller’s authority, with Howell writing as recently as late July that a witness subpoenaed to turn over documents and to testify before the grand jury about Roger Stone must do so. That witness, Andrew Miller, has been held in contempt of the court and now may appeal.

Other appeals of Mueller investigations and convictions are likely. What happens if any of them reach the Supreme Court?

“This is not a new argument and I generally agree, as a layperson (with unconstitutionality),” Judicial Watch President Tom Fitton told WND. “But the two lower court federal judges who recently examined the issue disagree. I wasn’t persuaded by their opinions, which are now on appeal.”