Calabresi and Levin Make Strong Case that Mueller Appointment is Unconstitutional

Professor Steven Calabresi, of Northwestern Pritzker School of Law, has published a paper, Opinion on the Constitutionality of Robert Mueller’s Appointment, in which he argues that the appointment of Special Prosecutor, Robert Mueller, to investigate whether the 2016 Trump presidential campaign colluded with Russian agents, was unconstitutional under the Appointments Clause of Article 2 of the Constitution of the United States. This Clause extends plenary power to the President to make certain appointments, particularly, in this case, principal Officers. The Clause distinguishes between two types of officers: “inferior Officers” who are subject to direct supervision and who do not require Presidential appointment or the advice and consent of the Senate; and, “principal Officers” who have broad powers and are appointed by the President and confirmed by the Senate.

“and [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.”

Professor Steven Calabresi

The Supreme Court determined (Buckley v. Valeo) that only those appointees “exercising significant authority pursuant to the laws of the United States” are “Officers of the United States,” and must be appointed in accordance with the Appointments Clause. Furthermore, it has been established (Morrison v. Olson) that an “inferior Officer” can be distinguished from a “principal Officer” in that he may be removed from his post by a higher officer, other than the President, and that his specific duties, tenure and jurisdiction are limited in scope. Moreover, (Edmond v. United States) “‘inferior Officers are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Professor Calabresi argues that, although appointed by Deputy Attorney General Rod Rosenstein, Mr. Mueller has become a rogue prosecutor with enormous and varied power, who has not received direct supervision from his boss and, therefore, is not an inferior Officer but, in fact, is currently the most powerful attorney in America. Since Mueller has not been appointed by the President, nor confirmed by the Senate, his powers are unconstitutional.

This argument has been supported, adopted, enhanced upon, and conveyed to the general public by constitutional conservative scholar and radio host, Mark Levin, who believes that Calabresi’s interpretation  provides a strong constitutional basis to challenge, and reign in, the power of Special Prosecutor Mueller. Levin concurred that “the all powerful Special Counsel was never nominated by the President or confirmed by the Senate” and, therefore, the “Mueller probe is unconstitutional.”

Constitutional scholar, Mark Levin – By Mark Taylor [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Common

Levin, in addition to this matter, has produced documents supporting the view that a sitting president can not be indicted. Among these are two memoranda sent to the Attorney General of the United States from the Office of Legal Counsel stating that “the indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the Executive Branch to perform its constitutionally assigned functions.” The multi-paged documents confirmed that the position of the Department of Justice for decades has been that a sitting president can not be indicted.

Furthermore, regarding Mueller, Levin stated that “you can not have a prosecutor, who is responsible to nobody, digging into the background, charging the President of the United States, debilitating his presidency, making it impossible for him to focus on his constitutional responsibilities, domestic and foreign. You can not have a judge and a jury determining whether an election is going to be reversed.”

On May 22nd, Levin noted that Mr. Mueller’s four assistants have dual appointments as Special Assistant United States Attorneys attached to the United States Attorney’s Office acting, in effect, as US Assistant Attorneys who are not confined to the scope of the Special Counsel and who have the ability to go outside these confines and utilize much broader powers, allowing them to investigate beyond the parameters allocated to Mr. Mueller into such areas of wire fraud and  bank fraud.

The extremely broad scope and authority of Mr. Mueller, extends far beyond those of any previous Special Counsel.  “He has interviewed hundreds and hundreds of people, he’s reviewed hundreds of thousands of documents, because he’s throwing wide nets, looking for stuff,” says  Levin. “He’s looking into matters involving numerous countries, not just Russia…He’s a roving U.S. Attorney with enormous power.”

Special Prosecutor, Robert Mueller – By Federal Bureau of Investigation (http://www.fbi.gov/about-us/executives) [Public domain], via Wikimedia Commons

Recently, Mueller sent agents to Israel in connection with the Trump probe to conduct interviews and to investigate at least two individuals who allegedly worked with the Russians, Saudis and/or United Arab Emirates to get Trump elected. The Israeli publication, HaAretz, reported that “Mueller’s team also worked with the Israel Police to seize computers…” The Times of Israel similarly reported that “the Israeli police worked with US investigators to seize the computers” of those being investigated. Jerusalem Post headlines confirmed the same, “Two of Mueller’s agents have traveled to Israel to conduct interviews, and the Israel Police has helped them seize computers related to the probe”.

This far reaching power contradicts his job description vis-a-vis the Appointments Clause. Calabresi and Levin argue that Mueller, appointed by the Deputy Attorney General, Rod Rosenstein, who had no authority to create such a powerful position, has in fact become a principal Officer, not an inferior Officer – or as Levin put it, “a principal Officer with enormous power and his power just keeps expanding, as does the power of his subordinates, which is his responsibility.”

Similarly, Professor Calabresi, contends that Rod Rosenstein blatantly violated the Appointments Clause when he appointed Mueller and believes that it is not possible that Mueller could be considered an inferior Officer who would be limited in scope, jurisdiction and power when, in fact, he wields such broad control.

Deputy Attorney General, Rod Rosenstein
By United States Department of Justice [Public domain], via Wikimedia Commons

Calabresi and Levin agree that it is not possible for Mueller to be an inferior Officer when, in fact, he is more powerful than the 94 appointed U.S. Attorneys, and, therefore, the Special Prosecutor must be a principal Officer. According to Calabresi, this appointment of Mueller as principal Officer and the evidence which he has accumulated as Special Prosecutor are illegal. Calabresi concludes that “everything he (Mueller) has done since May 17, 2017 is null and void” and is “an egregious violation of the Appointments Clause” and the “most gross abuse of power … in the history of the Justice Department since it was set up after the Civil War.”