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Law Prof.: Fire Rosenstein for ‘Most Gross Abuse of Power’ in DOJ History

Michael Morris
By Michael Morris | May 23, 2018 | 12:08 PM EDT

President Donald J. Trump (left) and Deputy Attorney General Rod Rosenstein (right) (Screenshots)

On Mark Levin’s nationally syndicated radio talk show Tuesday, Northwestern Pritzker School of Law Professor Steven Calabresi said President Donald Trump should fire Deputy Attorney General Rod Rosenstein for the “most gross abuse of power” in the history of the Justice Department since it was set up after the Civil War.

“And frankly, after such an egregious violation of the Appointments Clause, with the violation of attorney-client privilege that went along with it, it’s my view that President Trump should fire Deputy Attorney General Rod Rosenstein because I think that this is the most gross abuse of power that I’m aware of in the history of the Justice Department since it was set up after the Civil War,” stated Professor Steven Calabresi.

Professor Steven Calabresi’s comments on Mark Levin’s show came just a day after Levin, as reported by CNSNews.com, said that “[t]he appointment of Robert Mueller violates the Appointmetns Clause of the Constitution.” Levin, on Monday, posted “The Appointment of Robert Mueller Violates the Constitution” on his show’s website.

Below is a transcript of Professor Calabresi and Levin’s remarks from The Great One’s show Tuesday:

Mark Levin: “It’s a pleasure to have Professor Steve on my show here. How are you Steve?”

Professor Steven Calabresi: “Very well, Mark.”

Levin: “I wanted to ask you a few questions here. Steve Calabresi and I worked together with Attorney General Ed Meese in the Reagan administration. Steve went on to be a professor at Norhtwestern Law School.

“Over the weekend, I believe it was, or maybe Friday, you shared with me and a handful of others an opinion you wrote, a very compelling one, in my view, that the appointment of Robert Mueller violates the Appointments Clause of the Constitution. Can you summarize what you mean by that?”

Calabresi: “Yes. The Constitution’s Appointments Clause sets  up two kinds of officers: principal officers, who do important things and must be nominated by the president and confirmed by the senate and inferior officers ,who are subordinates, who can be appointed by the head of a cabinet department or by some other principal officer.

“My argument is that Special Counsel Robert Mueller is more like a U.S. Attorney, who is a principal officer, who has to be nominated by the president, confirmed by the senate than he is like an assistant U.S. attorney, who is an inferior officer. And so, I think that Deputy Attorney General Rod Rosenstein committed a grievous mistake and violated the Constitution’s Appointments Clause blatantly when he appointed Robert Mueller to be a principal officer when Mueller had not been nominated by President Trump, nor confirmed by the Senate.”

Levin: “Now, you go through your analysis here, because we’ve had past special counsel, past independent counsel, and your point here is, not like Mueller – that his, that his areas of responsibility, investigation are so broad, and all make the argument and see if you agree with me, and getting broader by the day, including his own staff. Now, we found out that they’ve been appointed special assistant U.S. attorneys, four of them, so they can go even further afield. And your point is, given the facts, you look at the facts of each case, and given the facts of this case, it’s not possible he’s an inferior officer. Go ahead and make your point.”

Calabresi: “Yeah. So, there have been— In Morrison against Olson, Chief Justice Rehnquist wrote an opinion setting out a four-part test to determine whether someone was an inferior officer. And under part two of that test, inferior officers can only perform certain limited duties. And under part three of that test, the officer must be limited in jurisdiction. And overall, the officer cannot exercise too much power.

“It’s clear that Mueller— In Morrison against Olson, one former government official, Ted Olson, was being prosecuted for one crime, and that’s why Rehnquist upheld the prosecution in Morrison against Olson.

“Mueller, however, is prosecuting 10 to 20 people, including 13 Russian citizens and three Russian corporations for a multitude of crimes, some of them related to Russia and the campaign, but some of them having nothing to do with Russia and the campaign at all.

“And in fact, Mueller is behaving like an officer who is more powerful than any of the 96 U.S. attorneys. He’s also more famous than any of the 96 U.S. attorneys. Ergo, he has to be a principal officer; he has to be nominated by the president, confirmed by the senate, and since he wasn’t, his appointment was illegal.”

Levin: “Now, there was a piece in Politico. I think I sent it to you this morning. I don’t know if you had a chance to read it, but let me just summarize it. I summarized it for the audience earlier, and basically what it says is, ‘Look, the argument that was made in the eastern district federal court to judge T. S. Ellis III was that Mr. Mueller is violating the scope of his appointment.’ And there response is: ‘No, he’s not. In fact, we have four special assistant United States attorneys. They have this dual-appointment from the eastern district, the U.S. Attorney’s Office, so they can move far afield.’

“Now, while that may defeat the scope argument, Professor Calabresi, it underscores the point about the violation of the Appointments Clause, does it not?”

Calabresi: “I think it does underscore the point about the violation of the Appointments Clause, and the fact is that those special U.S. attorneys are being directed and controlled by Robert Mueller who is an unconstitutionally appointed officer.

“And I think that all of the actions that Mueller has taken, the searches he’s conducted, his referral of the Michael Cohen matter to the U.S. attorney’s office in New York, I think all of it is unconstitutional. And the evidence he has obtained from those searches and the referral to New York are all fruit of the poisonous tree, which should be excluded from federal courts in future prosecutions.”

Levin: “So, all null and void, everything he’s done?”

Calabresi: “Everything he’s done since May 17, 2017 is null and void, and that information needs to be restored to its owners as fast as possible.

“And frankly, after such an egregious violation of the Appointments Clause, with the violation of attorney-client privilege that went along with it, it’s my view that President Trump should fire Deputy Attorney General Rod Rosenstein because I think that this is the most gross abuse of power that I’m aware of in the history of the Justice Department since it was set up after the Civil War.”

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