(CNSNews.com) - President Donald Trump was right when he tweeted on Monday that the "appointment of the Special Counsel is totally UNCONSTITUTIONAL," and when he tweeted a short time earlier that "I have the absolute right to PARDON myself," conservative legal scholar and talk show host Mark Levin told Fox News's Sean Hannity Monday night.
"I am saying whether it's the appointments clause or the pardon power or the issue of indicting the President of United States, he is right on his tweets, and he's making the people who are criticizing him look like fools," Levin said:
I would say this, and I've said it before. Where the hell is the United States Congress? The Republicans control it. They need to hold hearings. They need to ask Mr. Rosenstein why he didn't recuse himself since he recommended that Comey be fired.
They need to ask Mr. Mueller about those memos out of Justice Department; they need to ask Mr. Mueller what authority he has to drag a president in front of a federal grand jury or subpoena him. What authority does he have to even contemplate indicting a president?
And how is it that he hasn't violated the appointments clause of the Constitution? Congress has a role, for crying out loud. They're Article I, they were created first in the Constitution! They don't have to sit back and watch all this! They need to get involved in it.
A 1973 memo from the Justice Department's Office of Legal Counsel -- updated in 2000 -- concludes that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions."
"This has been the position of the Department of Justice for almost half a century," Levin told Hannity. "Mr. Mueller is an inferior employee in terms of the Department of Justice. He works for the Department of Justice. And he must comply with the policies of the Department of Justice. So even putting aside the constitutional issue, he can't defy the Department of Justice and bring an indictment."
Levin noted that no sitting president has ever been indicted; and no sitting president has ever been brought before a federal grand jury, "and there's a reason for that."
Levin repeated his argument that the appointments clause of the Constitution -- written by the Founding Fathers, not President Trump -- makes the appointment of Special Counsel Robert Mueller unconstitutional. Not every special counsel appointment is unconstitutional, but this one is, he said, because Deputy Attorney General Rod Rosenstein "does not have the power to substitute his will for the president and the Senate."
"The president nominates principal officers to the United States Senate, and the Senate must confirm assistant attorneys general, United States attorneys, assistant secretaries and up. The problem is, Mr. Rosenstein conferred so much power onto this special counsel -- no specific criminal statutes, no specific individuals, really? And his oversight is so passive and so limited. As he promised, he would keep his hands off of Mr. Mueller, that he's created an unconstitutional special counsel. And I believe that if the president challenges that one day, he will be successful."
Levin also argued that the president constitutionally has the right to pardon himself, although he questioned why the topic is even being discussed.
"Here's the language in the Constitution, Article II, Section 2. "The president has the power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. Do you hear anything there...except in case of the president? All of these protections are built into our Constitution to protect our Constitution, to protect our president from the mob, from the media, from the Democrats that are a mob today.
"They're here to protect him. It's not the president who's violating the Constitution, it's the media who want the Constitution violated. It's the Democrats who want the Constitution violated. It's Mueller and his merry band of Democrat prosecutors who are tipping around a constitutional confrontation."
Levin said Deputy Attorney General Rod Rosenstein "created an unconstitutional monster who is threatening to bring the president in front of a federal grand jury, which is unconstitutional and has never been done, with this notion of obstruction of justice when he exercises his prerogatives as president, because they want to indict him, which has never been done.
"The only way to remove the president of the United States is the old-fashioned way, through the Senate," Levin said. "And that's it. And so It's not the president who is the thug, it's Mr. Mueller who is the thug, it's not the president who is the incompetent, it's Mr. Rosenstein who's the incompetent. They can mock the president and his attorneys all they want. They show up in the supreme court, I'm betting that the president and his attorneys win."