Was Mueller’s Appointment legal?

I heard this accusation before and pretty much just thought it was total nonsense.  The idea was one could ignore everything Mueller investigated, because his appointment was unconstitutional.

I was surprised when I listened to a speaker on a conservative law forum, featured on C-Span, addressing this issue.   He had obviously thoroughly researched this topic.  I did not know the history of this issue.   These arguments have been used twice in District Court and rejected and then again in the Appellate Court,  where the three judge panel rejected all the arguments.  Once it gets rejected on appeal and not reviewed by the Supreme Court, it becomes case law – Mueller’s investigation was legal in the opinion of the court.

In 2018, a series of well written articles were published and posted online, detailing why Mueller’s investigation was illegal, written by Steven Calabresi,  a Professor of Law at Northwestern University.

Of course Donald Trump’s immediately ceased on this with his rapid fire tweeting  machine, to be telling his millions of followers that the investigation which he claims exonerated him (of course, it didn’t clear him of obstruction of justice) was UNCONSTITUTIONAL.

So, in what’s this all about?  The President nominates and the Senate approves “Principal Officers” such as US Attorneys and heads of Departments may appoint “Inferior Officers” per Article II of our constitution.   Robert Mueller was considered an inferior officer because the Justice Department could supervise his activities and fire him if necessary.   At the core of Professor Calabresi’s arguments, it seems, is the contention that Mueller was given so much authority, he fit better into the definition of a principal officer than an inferior officer.  The Appellate court disagreed and I’ve posted their opinion.

Consider for a moment if the case had succeeded.   It would require the President to nominate and the Senate to approve the Special Prosecutor.   It would be very difficult to imagine this ever happening, so we would have lost an important means of keeping government accountable, particularly at the highest level.  There will officials in high office who will abuse their power.  No one in a democracy is  above the law.

The Miller case is one for the textbook, thanks to the challenge by Trump supporters.  It adds clarity to Article II, Section 2 of our Constitution.  In the future,  any similar challenges on the authority of any Special Counsel appointment will be quickly dismissed in the courts as long as the Justice Department retains the right to dismiss the Counsel and clearly defines the scope of the investigation.    Unfortunately, claims that Mueller’s appointment was unconstitutional will live on, in podcasts, social media,  political conspiracy books, and their ilk.

Stay tuned,

Dave

Links:

The Hill: US Law is not on the side of Mueller

Washington Post: Special Counsel Robert Mueller’s appointment is valid

District Court concludes Mueller’s Appointment is valid

(The above legal opinion is pretty steeped in law and Department rules.  Per the Washington Post, “The separate constitutional challenge to Mueller’s appointment was brought by Stone’s associate Andrew Miller, who has been trying to block a grand jury subpoena from the special counsel’s office. Miller was held in contempt by a lower-court judge for failing to testify before the grand jury as part of Mueller’s investigation into Russian interference in the last presidential election.”  )

Note on the very nuanced analysis of obiter dictim on page 9 :  Obiter dictim: A judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.

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