Robert Mueller

The Legality of the Mueller Appointment

Judge Ellis rejects Paul Manafort's attacks on the legitimacy of the Mueller Investigation. Steve Calabresi argues that, even if Mueller were an inferior officer, his appointment would still violate the Appointments Clause.

|The Volokh Conspiracy |

Politico reports on the judicial rejection of some of Paul Manafort's attacks on the Mueller investigation.

In dicta, U.S. District Court Judge T.S. Ellis III's June 26 opinion comments on whether Robert Mueller's appointment violates the Appointments Clause of the Constitution:

Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General. Congress may vest appointment of inferior officers in the "heads of departments" and so the congressionally authorized appointment of the Special Counsel by the Deputy Attorney General, acting as the Attorney General, is valid pursuant to the Appointments Clause. [citations omitted]

Judge Ellis noted that Manafort's attorney did not raise Calabresi's challenge:

"the parties do not dispute that the Special Counsel's appointment was consistent with the Appointments Clause of the Constitution, which empowers Congress to vest appointment of 'inferior officers,' in the 'president alone' or in 'heads of departments.'"

Yet Judge Ellis also held that the DOJ regulations governing the Special Counsel were authorized by statute:

The statutory authority under which current Special Counsel are appointed by the Attorney General pre-dates the 1978 Act. The statutory provisions applicable to the Special Counsel were codified in 1966 at Sections 501 through 530D of Title 28 of the United States Code. See An Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 612 (codified at 28 U.S.C. §§ 501-530D). As relevant here, these provisions vest all functions of the DOJ, including conducting criminal litigation on behalf of the United States, in the Attorney General, see 28 U.S.C. § 509, and authorize the Attorney General to delegate these functions to "any other officer, employee, or agency of the Department of Justice," see id. § 510. Although the Attorney General can delegate these functions to an existing officer of the DOJ, the Attorney General may also retain outside attorneys and commission these attorneys as special assistants to the Attorney General or special attorneys. See id. § 515. Once a special attorney is retained, that assistant "may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct." Id. § 515(a).

Steve Calabresi essentially disagrees.

In an op-ed published earlier (June 19) in The Hill, Calabresi argues that, even if Mueller is held not to be a principal officer, his appointment as an inferior officer is not authorized by statute—Mueller being different from most special or independent counsels who were either appointed pursuant to independent counsel statutes no longer in force or were already confirmed US Attorneys:

The Appointments Clause of Article II provides that:

***"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."***

Robert Mueller is not an inferior officer of the United States because Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrong-doing by the president of the United States or other high level government officials.

Attorney General Janet Reno adopted a Department of Justice regulation to this effect in 1999, after the Ethics in Government Act sunsetted out of existence, which purported to create special counsels to investigate high-level or presidential wrongdoing, but she had no statutory authority to appoint Special Counsels to be inferior officers.Reno's regulation, "Grounds for appointing a Special Counsel", was blatantly unconstitutional.

Some might defend Reno's regulation by pointing to 28 U.S.C. Section 515(a), which provides that:

***"The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings … whether or not he is a resident of the district in which the proceeding is brought."***

This provision does not, however, authorize the creation of new inferior officer special counsels like Robert Mueller. But, it does allow the attorney general to appoint, for example, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, appointed under law, to take on the germane duty of being a special counsel. As a special counsel he investigated the Valerie Plame affair, and he prosecuted and convicted Scooter Libby — a criminal matter that was outside the jurisdiction of the Northern District of Illinois.

Another example of this occurred in 2012 when former Maryland U.S. Attorney Rod Rosenstein was appointed by then-Attorney General Eric Holder to investigate leaks in the District of Columbia. Most recently, Attorney General Jeff Session has asked Utah U.S. Attorney John Huber to investigate alleged politicization of the FBI. All of these U.S. attorneys were already principal officers of the United States "appointed under law" who were tasked with bringing legal proceedings outside their own districts.

28 U.S.C. 543, could also be argued to be relevant because it says that:

***"The Attorney General may appoint attorneys to assist United States Attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses in Indian country."***

The short answer to this as a statutory basis for constitutionalizing Mueller's appointment as a special counsel is that Mueller was not actually appointed to assist U.S. attorneys or to prosecute Indians. There is, therefore, no statutory authority for the Mueller appointment.

According to 28 U.S.C. 519, the attorney general has the power to "supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543." But this reference creates no new inferior officers just as 28 U.S.C. 543 creates no new inferior officers. Both clauses refer to attorneys already appointed by law who are assisting U.S. attorneys, which is not what Robert Mueller is doing.

BTW, Judge Ellis concludes by expressing discomfort with the use of a Special Counsel (endorsing instead an investigative nonpartisan commission):

The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.

DISCLOSURE: In the fall of 2016, I made a small donation to the Hillary Clinton campaign.

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  1. This is a better and more interesting argument from Calabresi than his previous one, which he continues to advance in the more recent article, that

    The Appointments Clause creates a default rule that all officers of the United States are principal officers who must be nominated by the president and confirmed by the Senate. It takes affirmative action by passing a statute for Congress to vest in the attorney general the power to appoint an inferior officer to be a special counsel. Since Congress has never passed such a statute, Robert Mueller is not, and cannot be, an inferior officer.

    I think a more sensible reading of the Appointments Clause is that there are principal officers, whose appointments always require Senate confirmation, and there are inferior officers who also require confirmation unless Congress positively provides otherwise. (The desirability of this rule was to prevent the President from creating numerous offices as he is empowered to do under the Commissions clause and staffing them without any check, an abuse that the colonists had held against the Crown.)
    The more productive argument is to admit that Mueller is an inferior officer, and that his office was legitimately created by executive action, but that his appointment was invalid because it was authorized by DOJ regulation rather than by Congress.

    1. I don’t think “productive” means what you think it means…

      1. Well, it would be productive if the judiciary agreed.

      2. Or he could mean, simply, “analytically productive”, as opposed to “everything I write needs to reflect how much I believe that Trump is literally Hitler.”

      3. Heh. More likely to gain traction if you prefer. He was unconvincing with the “principal vs. inferior” argument, it opened an entirely avoidable rathole.

  2. “In the fall of 2016, I made a small donation to the Hillary Clinton campaign.”

    Sad!

    1. Hillary Clinton was one of the absolute worst candidates the Democrats could have chosen.

      She rode Bill’s coattails and rich New Yorker FoBs into her position, and simply did not deserve her high status.

      Having said that, I would vote for her 1M times out of 1M over Trump.

      He has zero class, zero intelligence, zero tact, zero tolerance, zero ability to bring a nation (and allies) together, zero long-term sight, etc.

      He’s a tyrant who surrounds himself with sycophants.

      He only thinks about the bottom line–never about the process.

      He lives in a world where there are only two absolutes; his and wrong.

      I’m glad to predict history will not look upon him favorably.

      1. “He’s a tyrant who surrounds himself with sycophants.”

        If he were half as bad as you enjoy claiming, you’d be afraid to say something like that where it would be recorded. But if he’d been half as incompetent has you enjoy claiming, he wouldn’t be President now, would he?

        I think the thing that’s annoying me the most about TDS sufferers, is their confusing trash talk with objective reality.

        1. But then why did you talk so much shit about Hillary Clinton? I mean if she murdered Vince Foster, why wouldn’t she kill you too? She’s a criminal, you know.

          1. I don’t know that she murdered anyone, but she and her entire swamp were as corrupt as the day is long. I just read about how James Comey went through the revolving door and banked unknown tens of millions at Lockheed, before coming back to selfless government service, upon which Lockheed secured slews of no bid contracts through Hillary’s state dept. Meanwhile Clinton raked in hundreds of millions from foreign special interests that she never declared. But no worry, the investigation into the Clinton Foundation in the early 2000s was run by James Comey, while the applicable depts at the IRS and the DOJ were run by Lois Lerner and Rod Rosenstein, respectively.

            After that, the gig could continue more brazenly, with 145 million being forked over by entities directly benefiting from the Uranium One deal, with zero benefit provided to the American people. No worry, Robert Mueller is head of the FBI will be errand boy bringing uranium samples to Vladimir Putin.

            1. Unfortunately, Trey Gowdy discovered that HRC was violating the law by running everything through a secret server. But again no worry, James Comey simply usurped the entire DOJ and declared prosecutorial discretion to exonerate Hillary (a special maneuver only required because Loretta Lynch was unable to maintain even a shred of legitimacy).

              Everything was in its right place, until HRC got schlonged yet again in a democratic election. This presented a most dire circumstance for the swamp army. But no worry, there’s always an insurance policy. Just collude with old pals the Russians to cook up a narrative about Trump colluding with Russians. Then, have Comey fired on the recommendation of Rod Rosenstein, all while furiously firehosing leaks to the press for the admitted purpose of appointing good old errand boy Bob Mueller as special counsel. Good old Bob fix it.

            2. Unfortunately, Trump’s tariffs will likely drive up the price of aluminum, making it harder for you to make the tinfoil hat needed to keep the beams from your brain.

              1. Whaddaya mean? This is basically how the history will be written. It’s just the straight known facts, with a touch of editorializing – less than the MSM though 😉

          2. First off, I don’t think she murdered Vince Foster. I have doubts about the providence of that ‘suicide note’, most suicides do not go on and on about how somebody else is being mistreated, but that’s different from murder, more of an opportunistic ploy.

            Second… Ok, you’ve got a point: There are far too many people badmouthing Trump for him to retaliate against in detail even if he were a vicious tyrant.

            1. “Second… Ok, you’ve got a point: There are far too many people badmouthing Trump for him to retaliate against in detail even if he were a vicious tyrant.”

              I suspect that if he were a tyrant, there would be fewer people badmouthing him.

              1. Even when you are a vicious tyrant, you’ve still got to worry about practicalities.

                There’s a delightful line in an episode of “I Claudius” when Caligula, played by a wonderfully camp John Hurt, decides that a gladiator should be killed, so he flips his thumb down. The crowd don’t like his decision and boos. He turns back into the Imperial box with a look of fury and hisses “If only they had one neck !”

                1. That annoys me, from a historical accuracy standpoint. Thumbs-down (and also, “hiding” one’s thumb inside the fist) really meant, “Show mercy.” (ie, put down your sword/spear/etc). A thumb making a slashing motion across the neck? . . . well, that was not good news for you.

                  At least, that’s what I learned in Latin class…it was the only interesting thing I learned in 6 years, as I recall.

        2. I don’t think ‘Sure, Trump talks like an authoritarian, but until he actually cracks down on freedom you shouldn’t worry’ is a good argument.

          1. He obeys every negative court order but is a “tyrant” somehow.

            His staffers and cabinet members get chased out of restaurants but he is a “tyrant” somehow.

            Your side is ridiculous.

            1. I agree with you that his actual acts have generally been GOP standard, albeit sometimes more hamfisted than they could be

              But he constantly talks about what he wants to do, and it’s generally pretty dictatorial. (Or Space related.) Certainly what he wants is more than what petty private restaurant owners are capable of doing.

              But yeah, he seems to be restrained for now. Maybe for his entire term. Do I think our Republic is under imminent threat of becoming an empire? I do not.

              But I’m not going to ignore Trump when he tells us what the content of his character is over and over, and you shouldn’t either.

              1. Obama also talked about wanting more power. It’s what led up to the whole pen and a phone argument. He even mentioned China when referencing the powers he wished he had. Until Trump acts on those wishes they are just wishes. Thinking they are more is idiotic. Oddly you didn’t freak out over Obama making those comments.

              2. “the content of his character is over and over, and you shouldn’t either.”

                I don’t. He is a crass blow hard

                You think he is Julius Caesar for some reason.

                1. Who gives a fuck? What, do you want to be best buds and hang out on weekends?

                  He lowered taxes, reduced regulations and we once again have economic growth, there’s Help Wanted signs all over the place, my company is coming out of bankruptcy due to increased sales and we get raises again yea!

                  Great first SCOTUS pick, and I’m hopeful about #2, you know folks that actually follow the constitution and read eh law

                  NK has at least said they are willing to denuclearize, yea I know we’ll see but its better

                  Tariffs suck but oh well

                  6-1 to the good

                  Hillary would have been the reverse or who knows even possibly greater suck.
                  I mean we have 8 years of Obama suck as a reference.

                  So what were you worried about again?

                  1. He lowered taxes, reduced regulations and we once again have economic growth, there’s Help Wanted signs all over the place, my company is coming out of bankruptcy due to increased sales and we get raises again yea!

                    Thank Obama for that. Not enough time has passed since the GOP passed the tax plan for it to have any measurable impact on the economy. And Trump’s tarifs will undermind any impact they will have. The fact that your company was in bankruptcy in the first place most likely has to do with your general incompetence.

                    The bottom line is Trump and the GOP are bad for your company and the overall economy.

                    1. All good things that happen are because of my side. All bad things that happen are because to the other side.

                  2. He lowered taxes, reduced regulations and we once again have economic growth, there’s Help Wanted signs all over the place, my company is coming out of bankruptcy due to increased sales and we get raises again yea!

                    He raised taxes, has not reduced regulation, and economic growth has been continuous for years, during the Obama administration and to the present.

                    NK has at least said they are willing to denuclearize, yea I know we’ll see but its better

                    They’ve said that before. He doesn’t get credit for getting them to make the same promise as before.

          2. Is there ANYBODY, ANYBODY AT ALL that thinks Sarcastro is qualified to opine on the quality of an argument?

            1. Y you so mad?

            2. Measured by the quality of his own arguments? Yes. As much as anyone, and more than most.

              1. ty, Leo

                😀

                1. Not many people know this, but Leo was a flaming rwnj before he started reading Sarcastro’s comments.

          3. Well, it’s a much better argument than, “X routinely cracks down on freedom, but he talks a good game about liberty so no worries.”

        3. “But if he’d been half as incompetent has you enjoy claiming, he wouldn’t be President now, would he?”

          It wasn’t his incompetence that got him elected–it was the MAGA mouthbreathers who bought his garbage.

          1. “It wasn’t his incompetence that got him elected—-it was the MAGA mouthbreathers who bought his garbage.”

            Competence, in a candidate, is getting the voters to buy your garbage. Hillary spent twice as much money as Trump, and if she’d used that getting 80,000 more voters in the swing states, instead of 4 million extra voters in the blue states, she’d be President. That’s incompetence.

            1. Hillary’s garbage was 8 more years of Obama. Which sucked except Obama was charismatic and the Rs ran super lame candidates against him twice.

              And Hillary had the charisma of a dog turd. So all of Trump’s gaffe’s which were daily still wasn’t enough for the pantsuit to win.

              And he was promising hope and change, aka Obama. Except its working this time.

          2. Is this where you pretend to be much more intelligent than anyone who disagrees with you?

          3. “it was the MAGA mouthbreathers who bought his garbage.”

            No, it was this attitude.

            63 million Americans including hundreds of thousands who voted for Obama twice are “mouthbreathers”.

            Pathetic.

            1. Some Americans merely appeased the ignorance and intolerance, voting for Trump with reservations because they recognized his flaws but wouldn’t vote for Clinton or wanted tax cuts, anti-abortion laws, or the like at any cost.

              Other Americans embraced the bigotry and backwardness, voting for Trump with enthusiasm because they are low-quality, disaffected (for good reason) people. They are the MAGA knuckle-draggers.

            2. To be fair, only the ones that still support him, though it’s not much worse of an insult than to say they voted for him because of someone else’s attitude.

          4. “-it was the MAGA mouthbreathers who bought his garbage.”

            Those peasants are indeed revolting.

        4. That there are tens of millions of stupid people doesn’t make Trump competent.

          Both he and Clinton were shit candidates and both were locks to be the worst President in history.

      2. “He lives in a world where there are only two absolutes”

        “He has ZERO class[,] intelligence[,] tact[,] tolerance[], ability . . . etc.” (emphasis added).

        “He ONLY thinks about . . . NEVER process.” (emphasis added).

        Absolutist? Regardless, I voted for Trump for 2 reasons: (1) SCOTUS; (2) Hope for bipartisan support for reining in statutory delegations of congressional power. The radical left has become so triggered by Trump that they’ve made reason (2) impractical.

        As a result of unhinged rhetoric flowing from the left, no GOP congressman seeking reelection can lock arms with the left to drawback executive power. It’s disappointing. If the left truly believed Trump was “the worst,” they would attack statutory delegations of legislative power to the executive, and make in palatable for some on the right to lock arms.

        1. As a result of unhinged rhetoric flowing from the left, no GOP congressman seeking reelection can lock arms with the left to drawback executive power.

          The fact that you’ve decided the blame flows only one way is a bit…convenient.

          1. At least Onslow is being consistent…it’s ALWAYS the Dems’ fault (emphasis included).

          2. Wow… Sarcastro trying to call out someone else for blaming only one side. My god man, have some self inspection before casting stones.

            1. I make it quite clear that my side doesn’t have a monopoly on virtue.
              Haven’t seen you acknowledge faults in your side much though.

      3. “zero intelligence”

        His career says otherwise.

        He made himself into a major cultural figure for 30 years and got elected president and has accomplished quite a bit in the face of hysteric opposition.

        Eisenhower and Reagan and George W. got the stupid treatment too. So I guess Trump will get two terms too.

        1. I don’t know that I agree with your inherent assumption that intelligence and success are direct corollaries.

          1. Sarcastro, trash talk might be satisfying, but think this through: Aside from athletics and winning the lottery, intelligence and success are pretty much always direct corollaries. Stupid people fail at things, particularly complicated things.

            Even in athletics, successful athletes tend to be fairly smart people, too. And lottery winners who aren’t clever usually blow the money and go back to being poor.

            Granted, once you’ve got enough intelligence to succeed, other factors become decisive, too, like grit and circumstances. But while intelligence isn’t sufficient by itself, it’s a necessary component of success in almost all fields.

            So, yes, his success, at multiple things over a period of decades, actually DOES indicate that he’s smart. It’s just irrational to deny it.

            1. ” other factors become decisive, too, like grit and circumstances.”

              or for trump, grift and circumstance. Ripping people off and not paying your debts is also a way to amass wealth. If you have the resources to bully and cheat folks, you don’t have to be too bright to make some money.

              And I don’t think your corollary holds when one’s biggest accomplishments involve becoming a reality tv star. You aren’t claiming success on reality tv is correlated with intelligence, are you?

              1. “Ripping people off and not paying your debts is also a way to amass wealth.”

                And still doesn’t work for stupid people.

                And, yes, I AM claiming that success on reality TV is correlated with intelligence. For every moron you see on reality TV, there are a thousand morons who didn’t somehow managed to get paid for acting stupid. What did you think was the difference between them, their toothpaste?

                1. And primarily being a skilled rip-off artist and fraudster isn’t the kind of intelligence i want to see as the strong suit of the president.

            2. He inherited his life. Had Trump not been a centimillionaire heir, he would be a high-end condo or used car salesman, with a similar string of nondescript children and ex-wives, the same paunch; similar experiences with bankruptcies, stiffed vendors, and marital cheating; and — believe it or not — even worse hair.

          2. “I don’t know that I agree with your inherent assumption that intelligence and success are direct corollaries.”

            Wait, are you really suggesting that intelligence and success are inverse corollaries, or at best independent? That must be some really strong cool-aid.

            1. Well, I guess one explanation is that Hillary was just too darn intelligent to win the election.

              1. I said direct correlation. Weak correlation is certainly true, but ‘successful means smart’ is dumb.

                1. So you meant strong correlation? Fair enough, I guess that’s a little more defensible. To my mind, direct correlation is the same thing as positive correlation.

            2. He has to explain his own lack of success on something other than intelligence.

              1. Jeez, who pissed in your Wheaties?

            3. Ouch! You guys are making my head hurt.

              Correlation vs. Corollary

          3. “intelligence and success are direct corollaries.”

            You assume this, I do not.

            They are not 1 for 1 but they are connected.

            My conclusion is he is of above average intelligence but has with limited intellectual curiosity. He absorbs information better visually or orally than from reading.

            1. How could someone with above-average intelligence and the privilege of education at Fordham and Penn be half-literate?

              1. A less stupid person might reason on that basis that he’s likely not half-literate.

            2. Direct correlation does not necessarily imply a coefficient of 1. It can be any positive value between 0 and 1.

        2. “zero intelligence”

          His career says otherwise.

          He made himself into a major cultural figure for 30 years

          And? There are, what, hundreds if not thousands of celebrities, from sports to movies to whatever the hell the Kardashians are, who can say the same. Is that really a sign of intelligence?

          and got elected president

          Oh? So is that a sign of intelligence? Getting elected to office?

          and has accomplished quite a bit

          Yep. Why, there’s… no, wait, there’s… uh, and… maybe uh?

          1. Oh? So is that a sign of intelligence? Getting elected to office?

            Well, yes. Not physics professor intelligence, but compared to the idiot he’s being called, yes, much more intelligent than that. An IQ over, say, 110.

    2. The only recorded donation from Lindgren 1990-2018 is $200 to a Democrat who lost a primary for a Senate seat in Colorado in 1996, which suggests that it was a very small donation, under $50

  3. IIUC the Mueller appointment as Special Counsel is invalid as it started as a counter-intelligence investigation.

    1. The argument looks unnecessarily arcane to me, but from what I can tell the concern is that the DoJ has no Constitutional grant of authority at all to invest inferior officers.

      Which would be pretty surprising.

      1. Not quite. I understand the argument being that the DoJ has no Constitutional grant of power to create inferior offices. Creating the office is a prerogative of Congress. In creating it, they may chose to vest the DoJ with the power to select the officers.

        But you can’t appoint people to positions Congress never created in the first place. THAT is the argument.

        1. What is the Constitutional difference between an office and an officer with associated staff?

          1. Good question.

            Wikipedia says,

            “a position to which is delegate by legal authority a portion of the sovereign power of the federal government and that is ‘continuing’ in a federal office subject to the Constitution’s Appointment Clause. A person who would hold such a position must be properly made an ‘officer of the United States’ by being appointed pursuant to the procedures specified in the Appointments Clause.”

            The “continuing” language suggests, IMO, that Mueller may not be a federal officer of any sort, but only an “employee”. OTOH, the degree of authority he possesses suggests the opposite. I think it’s a bit of a judgment call in his case, neither position is absurd.

            1. How, if at all, does “continuing” intersect with the recess appointments clause ?
              The latter limits the appointment to a maximum term (I’m never quite sure what it is, but let’s say up to 2 years.) But SCOTUS has told us that such appointments do actually require a recess. So it seems unlikely that the President, absent a recess, can say “I’m appointing my cousin Vinny to command the Pacific Fleet, but only for 2 years max, so nyah nyah, he’s not “continuing” so he’s not an officer.”

              So 2 years (or whatever is mentioned in the recess bit) is presumably too much to claim you’re not “continuing.”

              And if you’re appointed for some narrow specific task ? eg commanding the Pacific fleet till the defeat of Japan ? that could easily spill over for more than a couple of years.

              So how “continuing” does continuing have to be ? Or is it just a Bush era cut and paste to let them do whatever it was they wanted to do at the time ?

          2. I should add at this point that my attempts to clarify what somebody’s argument is don’t necessarily imply that I agree with the argument. Just that I want it correctly characterized.

            1. Point taken. Interesting stuff regardless.

              If we are following the argument correctly, that line-drawing about level of authority seems a pretty weak hook to hang an argument on.

        2. Creating the office is a prerogative of Congress.

          There is plenty of support for the position that Congress has the power to create offices (usually this support is grounded in the Necessary and Proper Clause), but whether that power is exclusive to Congress is somewhat less clear. Many authors and opinions cite United States v. Maurice, 26 F. Cas. 1211 (C.C.D. Va. 1823), an opinion by Chief Justice John Marshall while serving circuit duty in Virginia, who interprets the phrase “and which shall be established by law” to require that Congress authorize the creation of offices that that Constitution does not create, but stops short of requiring that Congress itself must do the creating.

  4. Experienced trial lawyers know that it’s a huge mistake to read too much into comments made at an oral hearing on a motion like Manafort’s motion to dismiss. Ellis’ tongue-lashing of the special counsel’s office from the bench during that hearing — a remarkably injudicious act — got national headlines. And as it turned out, Ellis ruled for the prosecution. The conclusion of the opinion is the sign of a grumpy judge whose clerks had doubtless told him the law wouldn’t support the result he wanted to reach, but that, too, is dicta. Ultimately, trial judges don’t like to get reversed. Ellis would’ve been, had he ruled in accordance with his remarks at the hearing. Let’s hope he’s professional enough not to grumble in front of the jury.

    1. It’s a bizarre opinion by Ellis. A massive and irrelevant history lesson to start the opinion; it’s like he (his clerks) did a whole bunch of research and didn’t feel like having it wasted. And then a bunch of editorializing about the wisdom of appointing a special counsel, which last I checked is above his pay grade.

      The whole thing could’ve and should’ve been five pages. Two simple points: (1) Mueller was given the authority by Rosenstein to conduct this prosecution, and (2) the regulations Manafort is relying on don’t actually give Manafort any enforceable rights.

      1. I agree entirely, Mr. Nieporent.

        I actually have considerable qualms about the constitutionality of the regulation insofar as it purports to exempt itself from being considered in exactly the kind of challenge Manafort has made: There must be some avenue to challenge the constitutional authority of a prosecutor, and given that his authority derives through this regulation, I don’t think the agency that wrote it (DoJ) can declare it off-limits for consideration. But given the first point, the invalidity of that section of the regs wouldn’t change the outcome in Manafort’s case.

  5. I’m not sure I follow the logic that the person may only be appointed from existing Department of Justice Attorneys. After all, if the statute says:

    “The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General”

    Wouldn’t Mueller fall under “any attorney specially appointed by the Attorney General”?

    1. You stopped your quote just before the words “under law.” So the question is – what is meant by “any attorney appointed by the Attorney General UNDER LAW.” Presumably it means something different from “any attorney appointed by the Attorney General.”

      And I presume that Calabresi’s argument is that “under law” means under some (ie any) law that permits the Attorney General to appoint attorneys. But I further presume that Calabresi’s argument is that the law we’ve both cited is not itself such a law. It does not of itself give the AG power to appoint attorneys, it merely gives such attorneys the power to do various things, once they have been appointed “under law” and have been given the requisite instructions as to their task by the AG.

      1. So the question is – what law permits the AG to appoint attorneys, so that they are appointed “under law” as opposed to “at the AG’s discretion.” Calabresi comes up with such an example later – the s543 power to appoint attorneys in connection with Indian affairs. So if I have understood him correctly – and he doesn’t appear to be the world’s clearest writer – he’s saying “show us the law that Congress has passed that permits the AG to appoint attorneys to do Mueller type jobs.”

        He’s not disputing that the AG has the power “under law” to appoint some attorneys – eg s543. Nor that once appointed the law provides them with all sorts of powers. And I’m guessing that the original SC counsel law, since expired, contained the requisite power to appoint an attorney “under law.”

        Calabresi is just asking us to identify the law that permits the AG to create a Mueller type attorney – ie one who delves into Russian collusion rather than the affairs of Indian tribes.

  6. Without case citations, this is a worthless argument. In a common law system, everything starts with precedent.

    1. 🙂 How do judges arrive at a conclusion in an original case, when they have no precedent to guide them ?

      Obviously this “officer” thing is not a question of common law, it’s a question of statutory and constitutional interpretation. There is a legal text to interpret, so that’s where you start. If the text has been considered before you may have a precedent. But you can certainly have a go at interpreting a legal text even if you have no precedent

      1. Nope.

        If a judge has a Sherman Act test, they don’t first ask whether it fits within the plain meaning of the statute. They start with the cases.

        1. “test” = “case”

        2. How did they do the first case, in 1891 or whenever?

          1. They looked at the statute.

            This however is not the first case interpreting the appointment power.

            A lot of conservative scholars like to pretend all you do is read the Constitution and get the unitary executive. But there’s a couple of centuries of relevant cases here.

        3. And how does the judge know he’s got a Sherman Act case ?

  7. The “Special Counsel” was meant to only be appointed under “Special” circumstances where there is evidence that the executive has committed a crime.

    These aren’t “special” circumstances since there is no evidence of a crime. Hillary losing was a crime to some as is obvious by the contest of the IG report.

    1. Yes, this is the problem with an ‘intelligence’ investigation predicated on national security concerns. The appointment is not valid because there was no alleged crime. This is only ‘arcane’ to people who want to see it as arcane.

      1. There were many alleged crimes. So, uh, no.

    2. The “Special Counsel” was meant to only be appointed […] where there is evidence that the executive has committed a crime.

      That was true for the old Independent Counsel position, but the requirements for appointing a Special Counsel are much less demanding, requiring only “that criminal investigation of a person or matter is warranted”. In the old regime that would have been enough only to launch a preliminary investigation.

  8. “… He is required to report to and is directed by the Deputy Attorney General. may vest appointment of inferior officers…”

    Minor typo in the above sentence(s), obviously. (I do not see any way to privately contact Jim on the Reason version of the VC, which would have been a quicker and less annoying way of correcting the typo.)

    1. Thanks.

  9. FYI, the RUSSIAN company indicted by Mueller is pursuing Calabresi’s new position-that no law provides for a special counsel appointment- in their motion to dismiss. USA v. Internet Research Agency.

    1. My first thought was “that’s dumb” – why would they advance a motion to dismiss when it would be so much more fun, and would leave Mueller wriggling like a worm on a hook for longer, if they just carried on going to trial and demanding discovery. But I see that it’s me that’s being dumb. This is a different corporate defendant. So the Russkies can run the discovery fun in one case, and the Muelller’s illegal fun in another case. Double the fun.

      So the Russkies are a lot smarter than me. Mrs Moore would not disagree.

  10. Two points. First, when did the comments threads on this blog to any post become open season to either trash Trump or trash Hillary? It’s coming from both sides, and it’s getting very, very tiresome. Yes, I understand, some of you think that Trump is Hitler, some of you think that Hillary was the most venal, corrupt, conniving succubus to ever trod the Earth. Enough. Is it too much to ask that we stick to the point being discussed? And I thank those of you that have done just that.

    Second, can anyone cite me to a case where a Special Prosecutor or a Federal District Attorney began an investigation, without ever specifying the criminal action being investigated? It seems incredibly odd to appoint a Special Prosecutor without any inkling of what crime he was supposed to prosecute. If the appointment was to “investigate the Trump Campaign and see if you can pin anything on anybody”, no politician in America could withstand such an ordeal, and it certainly seems to raise serious due process concerns.

    I keep hearing about “collusion with Russia,” but what does that even mean? When Bill Clinton took speaking fees from a Russian Bank while his wife was running for President, was THAT the kind of collusion that offends you? Identify the specific section or sections of Title 18 of the U.S. Code which criminalizes the type or nature of the “collusion” that you believe Mueller was charged to investigate, so I can understand the necessary elements of the alleged crimes.

    1. “Second, can anyone cite me to a case where a Special Prosecutor or a Federal District Attorney began an investigation, without ever specifying the criminal action being investigated? ………I keep hearing about “collusion with Russia,” but what does that even mean?”

      Mr Nieporent knows : “There were many alleged crimes”

      He’ll be able to set you straight.

      Incidentally, as I understand it, Mr Mueller was appointed to conduct the counterintelligence investigation into Russia / Trump collusion that had previously been going on within the FBI. This obviously requires no criminal predicate, merely a worry about threats to national security. I further understand – possibly wroongly – that when the FBI is conducting a counterintelligence operation, it is free to notice any crimes that it happens upon along the way. Though I confess I have no idea whether the rules of evidence have any wrinkles when evidence has been turned up using counterintelligence tools.

    2. DjDiverDan asked:

      Second, can anyone cite me to a case where a Special Prosecutor or a Federal District Attorney began an investigation, without ever specifying the criminal action being investigated? It seems incredibly odd to appoint a Special Prosecutor without any inkling of what crime he was supposed to prosecute.

      You’re talking about an incredibly small data set. In the vastly, hugely overwhelming number of criminal investigations, the only specification of the potential crimes being investigated occurs entirely WITHIN the DoJ and is resolutely non-public ? no comment, no confirmation or denial, period end of paragraph end of book.

      (/sarc) Unless you’re Jim Comey, in which case: By all means, only you could possibly save the Republic, feel free to ignore your oath and betray both your principal and your principles whenever you want to color outside the lines. Chat it up, Jim! /sarc off)

      1. Continuing (2 of 3):

        There are many, many, many examples of foreign intelligence investigations that have resulted in criminal prosecutions and convictions. There are others that have resulted in investigations we’ve never heard about because they were secret and the DoJ personnel involved obeyed those rules of secrecy, and because they never resulted in a public indictment. In all of them, the “specification of the crimes” probably started out in oral brainstorming among prosecutors, or musings on a legal pad by one of them.

        The point being, this “specification” of which you speak isn’t remotely comparable to, say, a formal indictment, even a sealed one, which of necessity must be quite rigorous in the specification of the crimes being charged. That specificity is essential not merely for purposes of guiding and limiting the prosecutors, however, but in giving fair notice and due process to the defendant opposing those charges, and to the public observing it all. NONE of that applies to investigations as a general rule.

        1. Continuing (3 of 3):

          If you think there’s something in the Constitution that requires that before an investigation can commence, there be some formal written, dated, and signed specification of all the criminal charges under consideration, you’re mistaken.

          And even when a special counsel is appointed, under the current regs (as contrasted to the previous independent counsel statute), there’s no reporting to Congress or to a special oversight court on the special counsel’s activities. Rather, the special counsel is explicitly bound by all DoJ secrecy regs & policies, including those relating to confidentiality. The AG (or Acting AG, as here) reports to the chairs and ranking members of the House & Senate Judiciary Committees when a special counsel is appointed, when he’s done, and in rare circumstances when the AG has rejected his prosecution decisions; but the regs do NOT require the AG to identify the potential crimes that are under investigation.

          So: No, no one’s likely to be able to cite you to such a case. But that’s no surprise, and doesn’t mean anything is wrong with the system. It means that your question presumes something which isn’t true ? that is, that there need be such a formal specification, much less a written, public one ? for the investigation to be valid either under the Constitution or the special counsel regs.

  11. Sanity and mental health may be a more pertinent issue than legality.

    Question for the Mueller loons.

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