Trump: 'The Appointment of the Special Counsel Is Totally UNCONSTITUTIONAL!'

By Susan Jones | June 4, 2018 | 10:24am EDT
President Trump is now seizing on arguments, advanced by conservative scholars, that the appointment of Special Counsel Robert Mueller is unconstitutional. (File Photo of Robert Mueller/Screen capture/C-SPAN)

( - In one of many tweets on  this Monday morning, President Trump wrote: "The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!"

Trump also tweeted: "As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?" The president expressed disgust that the "never-ending Witch Hunt...continues into the mid-terms."

Trump's argument about the special counsel appointment being illegal was advanced late last month by conservative talk show host and legal scholar Mark Levin.

In a May 21 blog, Levin wrote that Mueller's appointment violates the Appointments Clause of the Constitution:

Mueller is not an inferior appointee, but a principal appointee...His powers are more akin to a United States attorney, not an assistant United States attorney. Moreover, his boss, Deputy Attorney General Rod Rosenstein, treats him as a principal officer — that is, Mueller is mostly free to conduct his investigation with few limits or restraints. ...Indeed, Mueller is more powerful than most United States attorneys, all of whom were nominated by the President and confirmed by the Senate as principal officers.

Furthermore, Rosenstein mostly rubber stamps Mueller’s decisions and is not involved in the regular management and oversight of Mueller to any significant extent, underscoring Mueller’s role not as an inferior officer but a principal officer. As such, Mueller’s appointment violates the Appointments Clause. Mueller would’ve had to be nominated for Senate confirmation like any other principal officer in the Executive Branch.

Rosenstein did not have the constitutional power to appoint a principal officer on his own anymore than the President himself does. To do otherwise is to defy the procedure established by the Framers for making such consequential executive appointments. It follows, then, that every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void. Every defendant, suspect, witness, etc., in this matter should challenge the Mueller appointment as a violation of the Appointments Clause.

Levin gave credit for the argument to Northwestern Law School Professor Steven Calabresi, with whom he served in the Reagan Justice Department.

Article II, Section 2, Clause 2 of the Constitution says, "The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Levin's former colleague Calabresi joined Levin on his radio show on May 22. Levin asked his friend to summarize his "very compelling" argument that the appointment of Mueller is unconstitutional:

Calabresi responded:

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.

Also See:
Mueller Appointment Is Unconstitutional


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