(CNSNews.com) - President Trump, following the lead of various legal scholars, tweeted on June 4 that "The appointment of the Special Counsel is totally UNCONSTITUTIONAL!"
On Wednesday night, Fox News's Laura Ingraham asked President Trump's personal attorney Rudy Giuliani if he plans to "make an argument about the underlying constitutionality of the special counsel," if Robert Mueller subpoenas the president.
"Both on its face and as applied," Giuliani confirmed. "Because on its face, the statute itself; and second, the fact that it (the Mueller appointment) was produced by what might have been a totally illegal counterintelligence investigation they tried to make into a criminal investigation.
"And clearly by the Comey memo -- we have to see what (Justice Department Inspector General Michael) Horowitz says tomorrow. Like Professor (Steven) Calabresi said, that memo could blow the whole thing up."
Former FBI Director James Comey, after he was fired by President Trump last year, leaked memos of his conversations with President Trump to the press, hoping to force the appointment of a special counsel, he later said. It worked. Robert Mueller was appointed special counsel by Deputy Attorney General Rod Rosenstein a week later.
The inspector-general's report, due out today, is expected to delve into Comey's leak of those apparently classified memos.
President Trump tweeted about this, too, on April 20, 2018: “James Comey illegally leaked classified documents to the press in order to generate a Special Council? Therefore, the Special Council was established based on an illegal act? Really, does everybody know what that means?”
Giuliani said barring any unforeseen events, he expects to decide in the next "week or two" whether President Trump will agree to sit down with Mueller. "Which means we then go to battling over a subpoena (if Trump refuses a voluntary interview), or getting him ready for a small, tailored, limited interview," Giuliani said.
In her Wednesday night interview with Giuliani, Ingraham noted that Kellyanne Conway's husband George has written an article debunking arguments that Mueller's appointment as special counsel is unconstitutional.
"Is there any concern about that at the White House?" Ingraham asked Giuliani.
"No concern about it," Giuliani said. "That is not as clear an argument as, let's say, their inability to indict, even their inability to subpoena," he added. "However, I would think it's an undecided question. So how can Conway decide the question?" Giuliani asked. "Maybe he wants to be on the Supreme Court, but I don't think he's going to get the appointment."
Conservative legal scholar Steven Calabresi has argued that the Constitution's Appointments Clause (Article II, Section 2) differentiates between "principle officers" who are nominated by the president and confirmed by the Senate; and inferior officers, who can be appointed by cabinet heads or other principle officers without going through the confirmation process.
As Calabresi recently explained it to conservative talk show host Mark Levin:
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.