Is Trump correct that Mueller’s appointment is unconstitutional?

TWASHINGTON vest the appointment of such he president, who inferior officers, as they might not be fully think proper, in the President acquainted with alone, in the courts of the pertinentlaw, or in the heads of departments.” Supreme Court case law, says the appointment The debate turns on the of Robert Mueller as distinction the Supreme special counsel was unconstitutional. Court has drawn between The president’s “inferior” and “principal” opinion, because it is his, is officers. If Mr. Mueller is prima facie evidence for the among the latter, his appointment opposite conclusion. It is, was invalid because however, not sufficient evidence. he was neither nominated Consider the debate by the president — he between two serious people was appointed by Deputy Attorney who have immersed themselves General Rod Rosenstein in the history of the — nor confirmed by Appointments Clause, the Senate. Steven G. Calabresi, which says: professor at Northwestern

“[The president] shall University Law nominate, and by and with School and co-founder of the the advice and consent of the Federalist Society, argues as Senate, shall appoint ambassadors, follows: other public ministers By “long-standing practice,” and consuls, judges of Congress and the executive the Supreme Court, and all branch give principalother officers of the Unitedofficer status to all “important States, whose appointments and powerful” officials, are not herein otherwise even those who have a provided for, and which boss who can fire them. In shall be established by law: 1976, the Supreme Court invalidated but the Congress may by law the law that created the Federal Election Commission to be composed of two members nominated by the president, two by the speaker of the House and two by the president pro tempore of the Senate. The court held that all six must be nominated by the president as principal officers. Mr. Mueller, says Mr. Calabresi, is much more important and powerful than an FEC member. Congress has stipulated that the 93 U.S. attorneys are principal officers, and Mr. Mueller has, Mr. Calabresi says, “acted and has behaved like,” and is “much more powerful than,” any U.S. attorney. Compare, for example, Mr. Mueller’s job relative to that of the U.S. attorney for Wyoming. Mr. Mueller has “nationwide jurisdiction” and powers (e.g., to indict foreign citizens and corporations “without clearance from [the Justice Department]”) that have had “a major effect on” U.S. foreign policy, powers that “in effect and in practice” are “akin to” those exercised by an assistant attorney general, a principal officer. Mr. Mueller has been “without any real supervision” by Mr. Rosenstein, “who has treated Mueller as if he was ‘independent.’”

Furthermore, Mr. Calabresi says Mr. Mueller cannot be an inferior officer because “Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrongdoing” by high officials. The Appointments Clause creates a “default rule” that all U.S. officers are principal officers and it takes an “affirmative action” — a statute — to empower the attorney general to appoint a special counsel as an inferior officer, which Congress has not passed. The 1978 law that vested in a special court the power to appoint independent counsels expired in 1999.

Writing in vigorous rebuttal, George Conway, a New York lawyer (whose wife Kellyanne works for the president who hopes Mr. Calabresi is correct), argues that Mr. Calabresi incorrectly asserts that Mr. Mueller must be a principal officer because he does not have a supervising and directing boss. Mr. Conway says:

Mr. Rosenstein has testified to Congress that he is “exercising my oversight responsibilities” concerning Mr. Mueller, with whom he has “ongoing discussion,” who “consults with me” about his investigation, and who has “received my permission” regarding the scope of the investigation. So Mr. Mueller, like an inferior officer, has “a boss” by whom he is “directed and supervised,” and whose “orders” Mr. Mueller is “faithfully following.” No presidential power has been diminished because Mr. Mueller’s mission was defined by a regulation written within the supervising executive branch. And although U.S. attorneys are principal officers, vacancies in the 93 offices can be filled for 120 days by the attorney general without Senate involvement and then “indefinitely” by district courts. Mr. Calabresi replies: 100 senators would have conniptions were U.S. attorneys treated as inferior officers not requiring senatorial consent.

Two intelligent lawyers disagree about this momentous matter, concerning which the Supreme Court’s nine justices might eventually be dispositive. If Mr. Mueller’s appointment is challenged, and the case gets to the court, and five justices reason as Mr. Calabresi does, Mr. Mueller’s subpoenas, indictments and other acts will be null and void.