The appointment of Special Counsel Robert Mueller is unconstitutional and, in any case, Mueller cannot undermine the prosecutorial authority of his superior, the president, Mark Levin said Sunday.
Interviewing Andrew McCarthy, former assistant U.S. attorney for Southern District in New York and National Review contributor, on Levin’s “Life, Liberty and Levin” webcast Sunday, Levin cited the constitutional requirement that someone with Mueller's power be appointed by the president and confirmed by the Senate:
"Let me just briefly point out the issue with Article 2 in the Appointments clause, for me, and Professor Calabrese and several others. It’s really quite simple.
“You are principal officer of the federal government or you’re not. Now, if you’re not, we pretty much know who that is. That is the vast majority of the people who work for the federal government, you don’t need to be nominated by the president and confirmed by the Senate.
“But, when they were debating this issue in Philadelphia, at the Constitutional Convention, they spent a lot of time on this. So, you have now cabinet secretaries, deputy secretaries, assistant secretaries, at Justice. Every U.S. Attorney has to be nominated and confirmed by the Senate as does an assistant attorney general or assistant secretary or so forth and so on.
“So, the argument is, the professor made it and I’m expanding on it, is: wait a minute, this Rosenstein appointment is different than all the other appointments in the past. It’s unconstitutional.
“You cannot appoint somebody with the power, effectively, of almost an attorney general or U.S. Attorney, even more so in some cases, without the president’s involvement or the Senate’s involvement.
“And a principal officer, a subordinate of the president of the United States can’t undermine the president’s authority when it comes to prosecutions, even in this case.
“Do you think that’s off the wall?"
McCarthy agreed with Levin – and warned of the extreme danger posed by Mueller’s unfettered power:
“I don’t think that it’s off the wall.”
“Nobody in the Justice Department, including the attorney general, is supposed to be unsupervised. The attorney general answers to the president. Everybody else in the Justice Department has a boss - at least one.
“I think it’s very dangerous to have a guy who’s off without any supervision.”