Sen. Johnson on Whether Mueller Appointment is Constitutional: 'I'm Not a Constitutional Scholar'

By Emilie Cochran | June 5, 2018 | 5:25pm EDT
Sen. Ron Johnson (R-Wisc.)

( -- When asked about the constitutionality of Robert Mueller’s appointment as special counsel to investigate alleged Russia-Trump campaign collusion, Sen. Ron Johnson (R-Wisc.) said he is not a fan of special counsels, that Congress should investigate scandals first, and that Mueller was appointed too soon by Deputy Attorney General Rod Rosenstein.

At the Capitol on Tuesday, asked the senator, “Professor Steven Calabresi of Northwestern Law School and Mark Levin have argued that Robert Mueller’s appointment violates the Appointments Clause because he is a principal officer exercising at least the authority of a U.S. attorney but was not appointed by the president or confirmed by the Senate. Do you agree that Mueller’s appointment is unconstitutional?”

Senator Johnson answered, “You realize I’m, I’m an accountant, right? I’m not a constitutional scholar. Listen, I think, just in general, I’m not a fan of special counsels, special prosecutors, but there’s a reason they allowed that, you know, law to expire.”

“In the current situation,” he said, “these are political questions and if the prosecution sees a more political type of issues, I’d much rather have the political branch handle this. And that means Congress should investigate, issue reports, provide the public exposure.”

Special Counsel Robert Mueller. (YouTube)

He continued, “The problem with any kind of criminal investigation, when you have a congressional investigation is that it hampers our ability to get that information out to the public, which is, from my standpoint, the top priority of all these. So, I’m just not a fan of special counsels.”

“I think that Robert Mueller was just practically appointed way to soon,” said Johnson.  “Should’ve let the House and Senate committees do their work, issue reports, then see if there’s any need for any prosecution whatsoever.”

Prof. Calabresi argues that Mueller has been acting like a principal officer of the United States, or someone who is nominated by the president and confirmed by the Senate, which Mueller has not been. Calabresi also referred to Justice Scalia’s dissent in Morrison v. Olson, contending that because Mueller does not have anyone supervising him in this position, it goes against the Constitution.

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