A Prominent Conservative Scholar Is Arguing the Mueller Probe Is Unconstitutional
https://www.yahoo.com/news/prominent-conservative-scholar-arguing-mueller-191328012.html
One of the founders of the conservative Federalist Society is advancing a controversial legal theory that Robert Mueller’s special counsel investigation is unconstitutional.
In a guest editorial in the Wall Street Journal earlier this month and a call with reporters Friday afternoon, Northwestern law professor Steven Calabresi argued that Mueller cannot oversee such a broad investigation because he was not confirmed by the Senate.
Calabresi argues that under the Appointments Clause of the Constitution, an official overseeing the probe would be a “principal officer,” and thus would have to be someone who was appointed by the president and confirmed by the Senate.
“[Mueller] is a principal officer, and since he has not been nominated by the President and confirmed by the Senate, everything he has done since May 1, 2017 has been unconstitutional and has been illegal,” he told reporters on the call, which was hosted but not endorsed by the Federalist Society.
Critics say the argument is far-fetched, though not implausible.
“It is a good-faith argument but I remain skeptical on its chances in the courts,,” Jonathan Turley, professor at The George Washington University Law School, told TIME in an email. “[Mueller] is closely tethered to the discretion of the Deputy Attorney General and operates only within the confines established by the mandate.”
The argument rests on a 1988 Supreme Court case called Morrison v. Olson, in which the court held that an independent counsel was an “inferior officer,” and not a principal, because the office was “limited in jurisdiction” to “certain federal officials suspected of certain serious federal crimes.”
But Calabresi argues that Mueller’s probe fails that test, since it has broadened beyond a limited investigation into a broader one that has so far brought charges on potential money laundering by former Trump campaign head Paul Manafort, low-level campaign aides making false statements to investigators about their contacts with Russia and propaganda efforts by Russian operatives.
Mueller reports to Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions recused himself from the investigation. But even though Rosenstein was confirmed by the Senate — making him a “principal officer” — Calabresi argues that he’s not supervising Mueller’s work closely enough to count under the Appointments Clause.
The stakes of the argument are high. If Mueller’s appointment really is unconstitutional, then Calabresi argues all of the actions he’s taken since his appointment in May of 2017 are “null and void,” including “all of the indictments he has brought, all of the plea bargains he has entered into, all the searches he has conducted, his phone logging of Michael Cohen and subsequent of referral of Michael Cohen to the Southern District of New York for prosecution, and any other governmental actions he has taken.”
The Justice Department declined to comment on the argument.
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