Sunday, May 27, 2018

The Unconstitutional Appointment of Robert Mueller

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

I have been humbled.  As a local constitutional authority here in Southern California, I have always taken pride about the fact that when it comes to the U.S. Constitution I am usually a few steps ahead of the political pundits, television and radio hosts, and professional writers out there.

I remember back when Glenn Beck had his show on Fox News, my mom asked me, "Doug, do you know what Glenn talked about today?"

"No idea, Mom," I replied.  I am not one to watch much television.

She grinned, and said, "What you were talking about two weeks ago."

When I am asked about the various personalities out there, I tell people that my two favorites are Rush Limbaugh and Mark Levin.  I like Hannity, Tucker Carlson, and the whole gang, too, but out of them all, Mark Levin comes closest to me when it comes to the U.S. Constitution.

That said, I've always joked that I am usually a step or two ahead of even the great Mark Levin.

Maybe not.

In fact, I am a week behind, on this one.

A former student, and reader of my articles here on Political Pistachio, sent me an email during the early morning hours on Saturday (yesterday from the perspective of the writing of this article), of which I didn't get to until this morning. The text read:
Hello My Good Man Doug,

This is something that you may like to digest for some edification and Article II.

Let me know how you take this, as Mark Levin is a pretty smart cookie when it comes to the Constitution.

He then sent me a link to Mark Levin's CRTV program, episode 454 -

I watched the video, carefully digesting the information, and found myself surprised I hadn't thought about what was being presented, myself.

For those of you who don't wish to watch the video, here is a cut and pasted, in a nutshell, version of the transcript Levin provided:
"I didn't invent this, I looked at what my friend wrote, I went over it very very carefully,  and I said, 'he's right' and 'I better start talking about this."  ... Steven Calabresi was among the smartest of the smart, he was on the staff of the Attorney General [under Reagan] as was I, I was chief of staff, he was, I believe, special counsel, not the Mueller kind of special counsel, ... Steve would go on to become a professor at Northwestern Law School where he's a professor today and extremely smart so he sent me a piece that he'd written ... I said Steve you hit this out of the park, you nailed it ... making the case from a constitutional perspective ... an overwhelming case ... that the actual appointment of Robert Mueller special counsel violates the appointment Clause of the United States Constitution ... the appointment of Robert Mueller as special counsel by Rod Rosenstein and the manner in which Muller is conducting himself in the manner in which Rosenstein is very passive about overseeing what Muller is doing, violates the appointment Clause of the Constitution ... our framers were so brilliant they thought that principal officers, that's the key word, principal ... officers of the executive branch should only serve after they've been nominated and then confirmed by the United States Senate, nominated by the president, confirmed by the United States Senate, because they wanted the Senate to play a role in these top positions ... look at the United States Department of Justice, every single United States Attorney has to be nominated and then confirmed by the United States Senate ... every single one of them at main justice in Washington DC of the Attorney General has to be nominated by the president and confirmed by the Senate ... I'm gonna add more I'm gonna read from the Calabresi piece that he sent to me, he says, 'the appointment of Robert Mueller to be a special counsel to investigate whether president Trump's campaign illegally colluded with Russian agents in 2016 in the presidential election violates the appointment Clause of the Constitution and is therefore unconstitutional' ... 'all actions taken by Mueller since this appointment on May 17, 2017 are therefore null and void, including all the indictments he's brought, all the searches he is conducting, including his wiretapping of Michael Cohen, and all plea Arrangements he's entered into.'  ... Robert Muller has behaved like the 96 US attorneys who are principle officers the United States and who must be nominated by the president, and confirmed by the Senate.  He's behaving like an assistant US attorney who does not have to be nominated by the president because he says he's what we call an inferior officer and they're thousands and thousands of inferior officers in the executive branch who don't go to the Senate for confirmation ... Robert Mueller's appointment is therefore unconstitutional under Chief Justice Rehnquist, the late Chief Justice Rehnquist, majority opinion in a Supreme Court case in 1988 called Morrison versus Olson ... Olson was Ted Olson who was the head of the Antitrust Division and Morrison was an independent counsel under the Independent Counsel statute which has since lapsed, but they challenged the constitutionality of that statute and went to the Supreme Court.  The Supreme Court upheld it and what Calabresi has done ... he's looked at these opinions so stay with me on this ... Robert Mueller's appointment is therefore unconstitutional under Chief Justice's majority opinion of Morrison versus Olson because it takes away quote too much unquote executive power from the president.  It is unconstitutional under Justice Scalia's dissent in Morrison because Mueller does not have a boss who is actually supervising and directing what he's doing, it's rubber-stamping.  Deputy Attorney General Mueller has deliberately abstained from playing such a role ... Article 2 of the Constitution ... is the clause that we generally refer to as involving the executive branch, here's what it 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 and the courts of law or in the heads of departments.  So you have the principals and the inferiors.  Principals are the key people ... principle officers are selected by the president with the advice and consent of the Senate.  Inferior officers may be appointed by the president alone, by the heads of the departments or by the judiciary; it has been the long-standing practice of Congress and the executive branch to give principal officer status to all important and powerful public officials even if they have a boss who can fire them ... the Department of Justice you have an attorney general the president can fire him, Deputy Attorney General the Attorney General, the president can fire him.  Associate attorney general and all these assistant attorneys general you don't have to be the absolute top dog in a department ... a principal officer, there are positions below the top person in the department that are also considered critically important ... for instance cabinet secretaries have always been treated as being principal officers even though they can be fired by the president.  Deputy and assistant cabinet secretaries are also principal officers that have to be nominated and confirmed even though they can be fired by the cabinet secretary ... it's obvious that Robert Mueller is behaving much more like a United States Attorney who must be nominated by the President and confirmed by the Senate, than he is behaving like an assistant US attorney.  Mueller has acted and has behaved like a principal officer even though he was never nominated by the president nor confirmed by the Senate.  The text of the appointments clause and the use of the word inferior elsewhere in the Constitution makes it clear that there are two prerequisites that must be met for someone to be an inferior officer and thereby excluded from being required the requirement of nomination and  confirmation. First, one must have a boss who the inferior officer reports to who can direct or fire the inferior officer; and second, an officer cannot be inferior if the officer exercises as much power as is exercised by all the United States attorneys ... is there any doubt that Robert Mueller exercises as much, if not more power, than the United States attorney?  He's not acting like an assistant US attorney who reports to a United States attorney focused on one person or a handful of people in one case or a handful of cases.  So, this second test as to the officer inferiority is somewhat subjective in closed cases, but, it is very real nonetheless.  If a prosecutor has as much power as the United States Attorney he is by definition a principal officer of the United States who must be nominated by the President and confirmed by the Senate ... a case called Edmund versus United States in 1997, a Supreme Court case ... Justice Scalia ... summarizes the history of the appointments clause in that case ... as we recognized in Buckley versus Valeo, 1976, it was a big free speech campaign case in which the Supreme Court actually came down for the most part on the side of free speech.  The appointments clause of article 2 is more than a matter of etiquette or protocol, it is among the significant structural safeguards of the constitutional scheme by vesting the president with the exclusive power to select principled non-inferior officers of the United States.  The appointments clause prevents congressional encroachment upon the executive and judicial branches.  This disposition was also designed to assure a higher quality of appointments.  The framers anticipated that the president would be less vulnerable to interest-group pressure and personal favoritism ... Federalist number 76, Alexander Hamilton, the president's powers to select principal officers of the United States was not left unguarded, however, as article 2 further requires, advice and consent of the Senate.  So, the point here is a president does not have the time to pick all the inferior people, they're not in fear of people in inferior positions and the executive branch, you know, there's two million of them ... on the political side there's 3,300 of them, but, he has the sole power granted under the Constitution to pick the key principals, and that's the way the framers of the Constitution wanted ... requiring the joint participation of the president and the Senate, the appointments clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one ... Mueller violates both of these ... the president never appointed him and yet he's a principal officer.  The president never appointed him, plus the Senate never confirmed him, so that undermines all aspects of the appointments clause because the president never appointed him as a principal officer and the Senate never got a shot at him ... accountability relative to important government assignments ... inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination in the advice and consent of the Senate.  Is Mr. Mueller's work being supervised?  No, a rubber-stamp is not supervision ... Deputy Attorney General Rod Rosenstein is by design, his own design, not supervising and directing the work that Robert Muller is doing ... Muller is not an inferior officer, therefore, under Justice Scalia's test in Edmund versus United States ... thus, taking away the president's nomination power ... Muller is not empowered to perform only certain limited duties.  The independent counsel's role here is not restricted primarily to investigation ... he's all over the map ... admittedly, Deputy Attorney General Rosenstein seems to have delegated to Mueller full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.  But, this grant of authority does not include any authority to formulate policy for the government or the executive branch nor does it give appellant any administrative duties outside of those necessary to operate ... Muller must comply to the extent possible with the policies of the Department ... Muller is without any real supervision by Deputy Attorney General Rod Rosenstein ... I should add he writes that while DeputyAttorney General Rosenstein is a principal officer and could take action that Mueller took, he cannot delegate his principal officer status to Mueller any more than Donald Trump could delegate his power to veto legislation to Robert Mueller.  The Constitution itself assigns the veto power to the president and the principal officer power to Rosenstein, and it is unconstitutional for either of them to give their constitutional powers to some civilian third party.  This is a very very important point, one that I've touched on in the past myself.  The conclusion is that the Mueller  investigation is unconstitutional, this means the indictments he brought are null and void, the subpoenas he issued are null and void, the wiretap he's engaged in wherein are unconstitutional, his referral of information to the US Attorney for the Southern District in New York is unconstitutional because any information he obtained is the fruit of the poisonous tree now.  What do you make of all that?  Is there any question in your mind that Robert Mueller is not the most powerful prosecutor in the United States?  ... the clear text, the language of the Constitution, what the framers intended, that people that have this kind of power need to be appointed by a President and confirmed by a Senate that they cannot be imported by, you know, the Deputy Attorney General, where he picks a third party civilian, as Calabresi points out, and and confers all kinds of powers on this individual.  I think this is a good argument I think it's an accrediting argument.  I think it's one that should be used in court.  I would even argue it's one that should be used by every defendant in this case and it's one that should be used by the president of the United States should he need it ... Mr. Mueller is an aberration.  Mr. Mueller is conducting himself like an autocrat.  Mr. Mueller has none of the power to remove a president.  He does not have a power to force a president with a subpoena in front of a grand jury ... does not have a power to substitute his own personal opinions for that ofthe United States Senate.  The United States Senate only can determine upon impeachment whether a president is to be removed, not Mr. Mueller, nor any jury under the  appointments clause.  Mr. Rosenstein does not have the power to subvert the Constitution ... with the appointment of Mr. Mueller ... under the appointments clause where the president nominates and the Senate has to confirm ... opinion by Professor Calabresi ... Mueller was appointed and his given his conduct given his duties given his behavior given the extent of his activities and given the substance of his actions, Mr. Muller is violating the Constitution because his appointment violated the Constitution and hopefully the courts at some point, maybe the Supreme Court, ultimately, will understand this because he's not conducting himself like anybody in the past and I'm aware."

Well done, Mr. Levin and Mr. Calabresi.  You gentlemen nailed it.

-- Political Pistachio Conservative News and Commentary

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