Calabresi & Lawson: "Why Robert Mueller's Appointment As Special Counsel Was Unlawful"

Calabresi and Lawson's new manuscript arguing that the Special Counsel is unlawful.

|The Volokh Conspiracy |

Steve Calabresi and Gary Lawson have a new manuscript on SSRN, expanding on their earlier arguments that Robert Mueller's appointment and investigation is unlawful for two reasons. First, Mueller has not been confirmed by the Senate and, second, Congress has not delegated to the Attorney General the power to create inferior offices or to appoint people to those offices.

Here is the abstract:

Abstract

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice ("DOJ") has had in place regulations providing for the appointment of Special Counsels who possess "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be "established by Law," and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not – and even obviously do not – authorize the creation and appointment of Special Counsels at the level of United States Attorneys. They authorize the creation and appointment of Special Counsels to "assist" United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel's appointment.

Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute – and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say. This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither Morrison v. Olson, 487 U.S. 654 (1988), nor Edmond v. United States, 520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an "inferior" officer. Such a reading leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.

There are surely times when Special Counsels are appropriate. Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics. Any number of United States Attorneys have performed these functions with distinction. Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title "Special Counsel." That is what happened on May 17, 2017. That appointment was unlawful, as are all of the legal actions that have flowed from it.

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  1. I think the reasoning is valid, but likely isn’t going anywhere, because Trump.

    1. It might be a decent argument for Mueller’s various inquisition targets to make.

    2. You spent less time in your substantive analysis than in your preemptive declaration that any who disagree are doing so in bad faith…

      1. You’re assuming I hadn’t already considered the matter. Discussions of the legality of Mueller’s appointment have been going on since it happened.

        1. Uncaptured considerations don’t matter. That you think the important thing in your comments here is not making or bolstering the argument but rather delegitimizing any who disagree shows your priorities.

          Between Congressional silence and the common practice of delegation of statutory authority across the administrative enterprise, these arguments seem novel to the point of special pleading. So there’s a because Trump, but not on the side of hypothetical judges being skeptical of this argument!

      2. “You spent less time in your substantive analysis than in your preemptive declaration that any who disagree are doing so in bad faith…”

        Yup. Shame on Brett for overlooking all those people discussing the Trump administration in good faith.

        1. You mean the hypothetical future judges that Brett is angry at for not giving this argument proper shrift?

    3. What would be the upshot, anyway? If the convictions are vacated, wouldn’t it take about 10 minutes to re-indict and convict on the sworn statements taken on the guilty pleas? D.C. prosecutors have appeared on some of Mueller’s filings–how much of what he’s doing is joint investigation? His team are DOJ and could easily be assigned to SDNY/DC and just continue. Heck, Mueller could be hired as “special counsel” by one of the districts. Don’t see how any evidence is subject to an exclusionary rule, and if so, the good faith exception would kill the argument. I suppose Trump could start firing people, but he didn’t touch Mueller/SDNY, and it seems that the same political considerations would apply, if not more so. Barr says not a “witch hunt” so how do you start firing regular DOJ/ U.S. Attorneys?

      Also, query if Mueller grand jury is a nullity, whether so is the grand jury secrecy–just a bunch of private persons, along with Mueller, free to report all about the investigation, without filtering or redaction by the Attorney General. Book contracts? Winning this one might not be the best for Trump.

  2. Just today, Andrew McCabe, the fired Deputy Director of the FBI, admits that after Comey was fired, he and others planned a coup attempt.

    1. Well, technically resorting to the 25th amendment would be a legal coup attempt, but it does go to demonstrate just how hostile they were to the incoming President. I don’t think any President in living memory has faced an executive branch that was so full of people determined to be rid of him regardless of what the voters might think about it.

      1. Well, technically, it would be illegal if the FBI (and/or DOJ) thought they could remove the President. That’s not what the 25th amendment requires.

        1. According to the news, they were investigating the possibility of convincing Trump’s cabinet to go along with a 25th amendment removal. Dropped the idea pretty quickly, but the fact that they even considered it demonstrated a lack of understanding of the 25th amendment combined with mind bogglingly severe TDS.

        2. But in fact that was exactly what McCabe was attempting to do. The intent of the 25th is pretty clear. McCabe was attempting to remove the President for reasons that already have an avenue of redress, i.e., impeachment.

          His attempt was illegal because it was an end run around the Congress and contrary to the intent of the 25th.

          He deserved to be sacked in just the matter that transpired.

          1. Something have one method of redress does not mean there cannot be another avenue.

            I’m no originialist, but not even I believe intent trumps text.

            1. It could not have worked without some extra-legal shenanigans. Literally, if they’d done it, his next move would have to drop a line to Congress and say, “No, I’m fine. Oh, and these guys are fired, so ignore them if they try it again.” and he’d be back to being President again.

              The 25th amendment isn’t designed to get rid of a President who is in any position to contest his removal. Once he contests it, the vote in Congress to confirm his removal requires two thirds of both houses of Congress, a higher bar than impeachment.

              The only way you’d pull it off is if you somehow incapacitated him from transmitting that message. IOW, an actual coup.

              1. The only way you’d pull it off is if you somehow incapacitated him from transmitting that message

                Or, in a less dramatic turn, have the cabinet make the political argument to Congress and the American People.

                Beyond the message no confidence vote of Trump’s own people might send, active support is a different thing than passive support to craven Congressmen.

                Would it turn Trump out of office? Who knows? But your analysis is way overdetermined.

                1. “Or, in a less dramatic turn, have the cabinet make the political argument to Congress and the American People.”

                  Setting aside that this would be a transparent misuse of an amendment that has to do with whether the President is capable of doing his job, rather than whether you like his politics…

                  Upholding a contested 25th amendment removal requires a 2/3 vote in both chambers on a very tight schedule. It’s all over in 6 days.

                  Impeachment requires a majority vote in the House and a 2/3 vote in the Senate, with no real time constraints.

                  It’s always politically easier to impeach than uphold a contested 25th amendment removal.

                  So, as a matter of simple logic, if you didn’t already have the votes to impeach, the only way the 25th amendment gets you there is if you can prevent the President from contesting his removal. Because you already know you don’t have the votes to uphold it.

                  Either they were total morons, or they had a plan that involved preventing Trump from contesting his removal. It was a coup they had planned.

                  Only they counted heads and realize that the first step, the cabinet vote, wasn’t going to work.

            2. “Something have one method of redress does not mean there cannot be another avenue.”

              Yes, let’s just ignore the chaos McCabe and his coup plotters would have un-leased.

              In the end, there would have been tanks in the street.

              1. So it’s a coup, so long as we read Bob’s fan fiction account.

                Why can you not admit that something can be bad and yet still legitimate?

                1. “so long as we read Bob’s fan fiction account.”

                  Enjoy the attempted removal of a future democrat.

                  1. If the FBI or whomever gets said Dem’s cabinet and then a supermajority of Congress to sign on?
                    I may be grumpy, I may think it’s not fair and breaks norms, but I don’t know I’d call it a coup.

                2. Because this would in no way be “legitimate.” The 25th Amendment requires from the VP and a majority of the cabinet a “written declaration that the President is unable to discharge the powers and duties of his office.” Nothing about Trump nor his firing of Comey even remotely approaches that, even if you buy into the obstruction theory (which I don’t).

                  Suppose someone had said about George Bush The Father that “he hates broccoli, refuses to eat it, and hence is unable to discharge the duties of his office, which include eating broccoli on a daily basis.” Everyone would understand that is nothing but a subterfuge to eject the duly elected president, likely for political reasons.

            3. The text says
              “Whenever …transmit …that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

              That language speaks to physical ability, not to political undesirabilty.

              That means there is only one means of redress… impeachment.

              1. How can you tell the language speaks to physical ability?

                1. Well, you got us there, he could be unconscious but otherwise perfectly healthy.

                  It says “unable”, not “wouldn’t do so in a way we approve of”.

                  1. Another who thinks a foreign agent is able to discharge the powers and duties of the President.

                    This is getting strange.

                    1. S: “a foreign agent”

                      “After my election I have more flexibility.”

                      Also, prove that our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP is this “foreign agent” of whom you speak. Be specific.

                    2. That’s not Obama being a foreign agent.

                      I’m not arguing Trump’s a foreign agent either.

                      HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP
                      Stop being such a monarchist.

                    3. A foreign agent is certain “able” to discahrge his duties, it is just that his inclination is to do so is in the service of another country.

                      Suppose that, God forbid, Alexandra Ocasio Cortez were elected president. The head of the FBI is convinced that her real agenda is world socialism, and that in reality she despises the U.S. Constitution and the rule of law, and will seek to overturn those as much as she can. Is she “unable” to discharge her duties as president, simply because she has another agenda? You would support removing her under the 25th Amendment?

              2. It speaks to mental ability, too. Which, you know, Trump doesn’t have.

              3. “That language speaks to physical ability, not to political undesirabilty”

                It is not only physical, could include mental abilities. A president that has hallucinations and thinks he is Napoleon Bonaparte should be removed under the 25th Amendment.

                But you are right, political undesirability is not a basis.

      2. It’s disturbing how many want to work around the deliberate protections against dictatorship.

        Trump is bad, but worse than a coup? Worse than the functional equivalent of a general warrant, forbidden to prevent the king from using the power of government to harrass challengers to his power?

        That Trump was all “Jail Crooked Hillary!” himself just goes to show the wisdom of it.

        1. Come now – this isn’t the FBI rolling tanks into the streets of DC.

          In this hypothetical, it would not be a coup. It’s not a coup if you jump through all the hoops and got Trump’s own cabinet to sign off.
          Those procedural hurdles are there to prevent dictatorship, would have worked as intended, and would still be in place for Pence.

          1. I agree, it would not have legally been a coup if they could have made it work.

            And who cares if it would have been legal? It would have been utterly pretextual, a sham proceeding, because there would clearly be no valid basis for it. Nothing more or less than deliberately overturning the results of an election because the people had elected the wrong guy, damn them.

            Even if they’d pulled it off, the result would have been a revolution. I’d have been glad to have personally taken part in burning DC to the ground and gunning down anyone who escaped the flames.

            They were playing with matches in a pool of gasoline, and if they didn’t realize it they were stupider than I think.

            1. BB: “I’d have been glad to have personally taken part in burning DC to the ground and gunning down anyone who escaped the flames.”

              Remind me to avoid DC when you’re around. The Lincoln Memorial can wait for another day.

            2. So it’s a coup because you would have gotten violent.
              Not a great metric.

              Valid would be up to the cabinet, not you. That’s how the law works.

              We are a country of laws, not Bretts!

              1. No, I would have gotten violent because it would have been a coup.

                Look, get over that the election didn’t turn out the way you wanted. Happens to me practically every 4 years.

                Not liking that you didn’t get your way in the election isn’t an excuse to overturn the result.

                But that’s what they were up to. A coup.

                1. No, you would have refused to abide by a properly followed protocol in the Constitution because you became a sudden positivist and not a textualist.

                  When the violence starts with you, you don’t get to point at that violence as proof it’s a coup.

                  1. “”The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”” Antonin Scalia

                    Scalia was as much a textualist as anyone, but when it came to Constitutional interpretation, he made clear that the original public understanding when the provision at issue was passed is what controls. And the 25th Amendment and its history makes clear that it was intended for a president who was mentally or physically incapacitated, not someone who did something you don’t like, like fire the FBI director.

              2. your claim is not obvious. he president would appeal to SCOTUS that the action did not fulfill the conditions of the 25th

                1. The President might well do that. But the current state of SCOTUS precedent is against him.

                  1. You didn’t notice that US v Nixon wasn’t about the 25th amendment?

                    1. I can’t distinguish the reasoning to keep it from applying here as well.

                  2. Sarcastro, your link is to the Richard Nixon executive privilege case, but your comment would make more sense if you were referring to the non-judiciability of the impeachment of Judge Walter Nixon.

                    1. Baaaals, VoR, you are correct.

                      1L-type rookie error.

          2. And if the police all testified that the unarmed, unmoving man was threatening them, it was alright for them to shoot him?

            The 25th Amendment clearly requires that all parties state that the President is unable to discharge the duties of the office – something that is not true just because people like McCabe are objecting to the policy positions of the office holder.
            Misusing the Amendment like that would be a coup, even though the mechanism they use for it is a law.

            1. If the FBI was convinced that Trump was acting as a foreign agent, as was their concern, and managed to convince enough of Trump’s cabinet of the fact, that’s not some immaterial antipathy.

              1. “If the FBI was convinced that Trump was acting as a foreign agent…”

                If true, that may be grounds for impeachment, not the 25th amendment. But in any event, given that the basis for their suspicion was that they didn’t like his executive action with regard to their agency, such a discussion is inappropriate.

                1. As has been pointed out, it’s six of one – the 25th even requires more of Congress.

                  Of Congress gets to decide what’s a high crime and misdemeanor, it gets to decide what’s inability.

              2. You’ve got the causality backwards, because you’re taking the pretext at face value.

                They weren’t convinced that he was acting as a foreign agent. They ginned up a story that he was acting as a foreign agent to have an excuse to act against him.

                The foreign agent charge was based on the Steele dossier, which they knew when they used it was a steaming heap. They only used it because they already wanted to work against him.

                1. You’re taking your own self-litigation as what the FBI must have known back then!

                  They weren’t convinced that he was acting as a foreign agent. They ginned up a story that he was acting as a foreign agent to have an excuse to act against him.

                  There is zero evidence that is true other than that you never believe people could have reasonable concerns about Trump, and are quite willing to create conspiracies.

                  The foreign agent charge was based on the Steele dossier. It was not based on that alone, as you can tell from the released Carter Page FISA warrant. Remember?

                  which they knew when they used it was a steaming heap. They had no way of knowing that then, and while a bit salaciously fantastical in places it’s not been contradicted yet.

                2. “They weren’t convinced that he was acting as a foreign agent. ”

                  It doesn’t matter if they were convinced. They don’t get to decide that about him or any other POTUS. Trump was duly elected and they had no evidence of an actual crime. POTUS is in charge of foreign policy, and it is up to Congress (via impeachment) to address the violation of any treaties.

                  The FBI grossly overstepped their authority when they went after him for ‘collusion.’ They all deserve to be slapped down hard.

              3. “Being a foreign agent” is not “unable to perform the duties of President”. It just means you don’t like why that person is doing stuff.

                If they had been talking about leaking their evidence, that would be one things – also a violation of law, though. But proposing to use the 25th Amendment to remove a President because you don’t like his policies or mistrust his motives is clearly an abuse of the process, and would constitute a coup attempt if performed.

                1. Coup via abuse of process? They don’t make coups like they used to!

                  So you are arguing that there are no Presidential duties one is unable to properly perform if one’s loyalty is not to the US?

          3. “In this hypothetical, it would not be a coup. ”

            C’mon, senior officials of the internal security agency have secret meetings to remove the duly elected president and its not a coup attempt. Pull my other one.

            If it happened in Honduras or Nigeria, we certainly would consider it a coup attempt.

            Aren’t you the great protector of norms? The Deputy AG offered to wear a wire, FBI memos were leaked to pressure for a counsel appointment by the same Deputy AG who appointed a former director of the internal security agency.

            No big deal!

            1. They would need to get the cabinet, and later Congress to sign on via protocols laid down in the Constitution.

              That’s not a coup, even if it makes you angry to the point of wanting some drama.

              Yeah, I don’t much like the FBI’s behavior (I rarely do) and this 25th business was indeed some windmill tilting hubris. But breaking norms does not a coup make.

              1. “They would need to get the cabinet, and later Congress to sign on via protocols laid down in the Constitution.

                That’s not a coup…”

                It certainly can be a coup, if the President is able to discharge the powers of his office. Just because some protocol is nominally followed doesn’t make it a coup. We call the 2009 Honduras coup a coup even though it was ordered by the supreme court.

                1. Just like what’s impeachable is a question entirely up to Congress, wouldn’t what constitutes inability be entirely up to the cabinet and Congress?

                  1. You keep blowing off that,

                    1) He can contest it.

                    and,

                    2) If he does, it takes more votes to confirm it than if they just impeached him.

                    So you don’t go this route for anything but clear cut actual impairment, unless you’re planing on preventing him from contesting it. Impeaching him would be EASIER.

                    1. No, Brett, that’s entirely my point. If Trump is removed under that procedure, he damn well deserves it and your personal definition of inability is rather beside the point.

                      Impeachment may or may not be easier, since political winds turn on drama and narrative, as I noted above.

                  2. “Just like what’s impeachable is a question entirely up to Congress, wouldn’t what constitutes inability be entirely up to the cabinet and Congress?”

                    It’s not entirely up to Congress. Impeachment has to be for high crimes and misdemeanors. Congress and the cabinet might have some wiggle room about defining what the parameters are, but if they clearly go outside their respective constraints to remove a president, their actions won’t be seen as legitimate.

                    1. US v. Nixon says otherwise, at as a matter of law.

                    2. “US v. Nixon says otherwise, at as a matter of law.”

                      Again, just because processes are technically followed doesn’t mean it’s not a coup.
                      The cabinet cannot simply remove the president by a pro-forma finding of incapacity.

                      If SCOTUS sua-sponte declared that some General was president, that would still be a coup, even if you’re all like no, no, no, Strongman v. Trump says it’s perfectly legal.

                2. There is a check built into this: A good chunk of the President’s party would havr to buy into it. This is why it needs a supermajority — precisly so one party can’t evict the president of the other party.

                  1. But the check only kicks in if the President contests the removal.

                    Either McCabe et all were so deranged that they thought they’d get a good deal of the Republican House and Senate members to go along with removing the newly elected President on a transparent pretext, (Maybe; They thought they could get his cabinet on board.) or they planned to prevent him from contesting it somehow.

                    1. Brett – they didn’t do it. Which means neither of the above is the actual final upshot.

                    2. “Brett – they didn’t do it.”

                      Which makes it just a plot, instead of an actual coup.

                    3. It looks like they plotted to consider following a constitutional procedure and gave up because they realized it certainly wouldn’t get them what they wanted.

                      Not exactly revolutionaries.

                  2. I dunno. Maybe under Sarcastro’s theory the VP can just declare that the President is “dead to me” and take office. Who gets to decide what dead means?

                    1. Do you think my theory includes running that ditty by the President’s cabinet and Congress – twice.

                      And don’t mistake my saying ‘not a coup’ for ‘good and awesome and normal.’

                    2. “Who gets to decide what dead means?”

                      Ruth Bader Ginsburg. She’s an expert in it, 79 days missing.

                    3. Ruth Bader Ginsburg. She’s an expert in it, 79 days missing.

                      See, the thing about Poe’s law is that it’s really impossible to tell the loony tunes from the people mocking the loony tunes.

                    4. Not a Poe’s law example; don’t you remember how much the so-called “Mainstream” media we’re freaking out, and constructing conspiracies, FLOTUS’ 20-some day absence from public view?

                    5. Were, damn autocorrect and Reason’s inability to edit.

                    6. “Who gets to decide what dead means?”

                      Dead is such a shaded word.

                    7. Comparing ambiguity about dead to ambiguity about unable more underscores my argument than yours, Bob.

                    8. No, it points out how ludicrous you are about the definition of unable.

                3. We call the 2009 Honduras coup a coup even though it was ordered by the supreme court.

                  What do you mean, “we,” paleface?

          4. Sarcastr0: “In this hypothetical, it would not be a coup.”

            The truly bizarre thing (to me) is that the insiders (conspirators?) really thought Trump’s recently appointed cabinet would go along. It certainly support the idea that there are bubbles about.

            1. …bubbles?

              1. “…bubbles?”

                Yes Peaches?

                Bubbles, you know, where groups of people only interact with like-minded people, so they think that people would go for something like this…

              2. Mental bubbles people live in.

                1. Got it. It’s a common enough term, especially in DC I just lapsed for a sec.

                  The fact that they didn’t go through with it makes bubbles or McCabe overdrama equally likely IMO.

            2. Not to mention the VP. Pence is a straight arrow, and he would never go for it unless Trump was truly mentally or physically incapacitated.

          5. This is incredibly inaccurate. The purpose of the 25th amendment is to deal with situations of presidential disability, such as those arising from medical conditions. ie, if the president started suffering from alzheimers, or if he were in a coma.

            (Elections and separation of power are meant to prevent dictatorship, as is US military culture venerating protection of the constitution and the republic but not specific loyalty to the president).

            1. Lotta anti-texualists on this thread today.

              1. XXV text says “unable to discharge”. I say Squirrelloid was being quite textual

                1. You think unable cannot encompass being a foreign agent or otherwise compromised by a foreign power?

                  1. No, it can’t.

                    Being a foreign agent goes to the quality of his performance, not his ability to perform.

                    1. Being a foreign agent goes to the quality of his performance, not his ability to perform.

                      If they meant incapable, they would have written incapable. If they wanted it to be limited to physical or mental incapacity, they would have written that.

                      They chose a more shaded word, presumably for some reason.

                    2. How is “unable” a shaded word? It seems very straightforward to me: Is he able: Yes/No.

                      Motive plays no part in it, unless you are claiming that these conspirators thought that becoming a foreign agent had rendered it literally impossible for Trump to perform his duties: signing (or not signing) bills, appointing ambassadors and executive branch members, giving a report on the State of the Union, or granting pardons.

                    3. Unable != incapable. Also != literally impossible.

                      Also, too, presidential duties go a bit beyond your list.

                    4. “Unable != incapable. ”

                      The dictionary disagrees.

                    5. Unable != incapable.

                      Dunno, I’m having a hard time seeing much daylight between those.

                    6. “How is “unable” a shaded word? I”

                      Its not. He just does not want to admit he’s wrong.

                      XXV also says that the president can dispute that an “inability” exist.

                    7. The President being able to dispute inability is a point in my favor – if Congress confirms that the President is unable a second time something serious is going on.

                      I’ll leave you to your belief that unable and incapable are the same word.

                    8. “I’ll leave you to your belief that unable and incapable are the same word.”

                      “belief”? You are pathetic.

                      Miriam Webster:

                      “unable adjective
                      un??able | \ ??n-??-b?l \
                      Definition of unable
                      : not able : INCAPABLE:”

                      Your Dictionary:

                      unable adjective
                      The definition of unable is a person or thing that doesn’t have the ability, power or authority to do something.

                      Vocabulary.com Dictionary

                      “When we’re unable, we’re incapable. ”

                      The Free Dictionary

                      “un?a?ble (?n-??b?l)
                      adj.
                      1. Lacking the necessary power, authority, or means; not able; incapable:”

                    9. c’mon Bob. Everybody knows that dictionaries are a manifestation of white supremacy.

                    10. Its really Trump like how he just won’t give an inch here.

                    11. Yeah, when you’re argument turns on an imagined distinction between “incapacity” and “inability”, you’re pretty much cooked.

                    12. That’s not required (US v. Nixon is all that’s required). It was an example of how the text along isn’t enough. Bob is the one making the maximalist argument that the two words are completely identical.

                    13. You are very close. Do these two words have the same definition in the dictionaries you looked up?
                      And even if they did – check lower definitions to see connotations, common usage, etc.

                      With some notable exceptions, different words are rarely completely redundant.

                      One can not use able and capable interchangeably every time, or ability and capability. Or unable and incapable.

                    14. Ok, enjoy your delusions.

              2. I must have missed the ‘foreign agent’ exception noted in the Constitution.

                Can you tell me where that is?

            2. “The purpose of the 25th amendment is to deal with situations of presidential disability, such as those arising from medical conditions. ie, if the president started suffering from alzheimers, or if he were in a coma.”

              Right. Woodrow Wilson was the prime example — he suffered a stroke, and then for about two years, his wife was de facto president. That is the situation they had in mind when they passed the 25th Amendment.

              1. How intentionalist of you, Bored Lawyer.

          6. “In this hypothetical, it would not be a coup. It’s not a coup if you jump through all the hoops and got Trump’s own cabinet to sign off”

            So something that is an utter sham, but has the outward signs of following proper procedure, is legitimate?

            Sounds like a trial under the former Soviet Union. The result was a foregoing conclusion, but they felt they had to give the outward appearance of a trial for show. Such a trial that resulted in capital punishment is nothing more than state-sanctioned murder, despite the trappings of a trial.

            Same applies here, mutatis mutandis.

            1. What kind of sham involves the President’s cabinet and his own party gong along?

              If you really think everyone but Trump is in the mindset of the USSR judiciary, then we’re already doomed. But I don’t think you’re that crazy.

        2. “Jail Crooked Hillary” is just catchier than “Subject Hillary to the normal operations of the legal system, which we have good reason to believe would result in her being jailed.” You can’t expect slogans to be all that concise and wordy.

        3. Why is Trump bad?

          The lies?

          The bigotry?

          The self-dealing?

          The lack of intellectual curiosity?

          The lack of character?

          The nepotism?

          The convictions of his associates?

          The stale thinking?

          Why do you call Pres. Trump bad?

      3. “Well, technically resorting to the 25th amendment would be a legal coup attempt,”

        Most coups claim some sort of legal authority. There is zero argument that firing the head of your agency is grounds for removal under the 25th amendment. What they were discussing was a coup.

      4. We’ve also never had a President in living memory who has been as consistently unpopular among voters as President Trump.

        1. And your statement’s germane to…what?

          1. Context. It’s probably hard to tell because of all the embedded comments below, but the thing I was responding to was a comment about how historically unusual the opposition to the President was. You would expect the least popular presidents to experience the most hostility.

    2. “These were the eight days from Comey’s firing to the point that Robert Mueller was appointed special counsel.” NYT article

      Traditionally, coup attempts take Seven Days in May.

    3. I’m in the camp that Comey should have been fire and the more he shows up on TV them more convinced I become. He botched the Whole off again on again Hillary email Investigation with his public statements. He then went after Trump. Democrats wanted him fired and thought he may have cost Hillary the election before he turned on Trump, then he became a left wing hero. His subsequent opinions confirm to me he’s all about himself.

      That even goes back to the famous bedside episode with Mueller

      1. Comey is a left wing hero?

  3. This is obviously true

    Rare to see this in the OP versus by a commenter.

    1. Uh, it’s not in the OP; it’s in an article being quoted in the OP.

      1. Huh. Semantically, it’s inline so I call it part of the OP. YMMV.

        1. “Semantically, it’s inline so I call it part of the OP.”

          You cal a lot of things what they aren’t.

  4. What does legal have to do with it?
    It’s not like we have a constitution or anything.

  5. If I were Flynn, or Cohen, or Manafort, or another snared in this, I would seize on this!

  6. It is common knowledge now that the whole Russian thing was just a manufactured ploy by the Left in an attempt to discredit a President who was duly and lawfully elected by the populace. Mueller is just a tool being used to attempt to delegitimize him. Hence why the investigation has been ongoing for more than two years with nothing to show from it except one process crime prosecution and catching another guy who cheated on his taxes.

    Now it comes out today that Comey and the FBI were actively seeking the removal of Trump using the 25th Amendment. These are not elected politicians or even politicians at all. These are career bureaucrats essentially planning a coup. Or at least we would call it a COUP if it were any other country.

    I don’t take accusing people of treason very lightly, but it seems here we have ample cause to believe that there exists in the career DC bureaucracy a group engaged in that very activity. Trump would be well within his power to immediately arrest, fire, and indict those engaged in such activities.

    1. It is common knowledge now that the whole Russian thing was just a manufactured ploy by the Left in an attempt to discredit a President

      Common knowledge? Check that Pew study maybe.
      But why do Trump’s compatriots keep lying about their ties to Russia then?

      1. They are also converned with “process crimes” being invalid even though they were happy to impeach Clinton for a process crime — and one completely unrelated to the crime being investigated.

        1. And you would have thought that taught American society a pretty good lesson about giving special prosecutors a blank check to launch unending investigations without limitations.

          Also, Klinton’s crimes were a bit more than simple process violations.

        2. The investigation is about Russian interference and any crimes turned up in it’s course.

          But I’m not talking about the crimes, I’m talking about all the lying. Seems to rather contradict the ‘common knowledge’ that Russia is all ginned up by the Left (and by a bunch of Republicans in Trump’s DoJ, it seems)

          1. No, it’s not about ” Russian interference and any crimes turned up in it’s course.” One problem with the special prosecutor is that what crime Trump may have committed was never specified. And I might add that collusion, the ostensible object of the investigation, is not a crime!

            It’s clear that the Mueller “investigation” is simply state-sanctioned harassment of the President.

            1. There is no requirement that the investigation have a particular crime cited at it’s outset, though.

              It’s clear that
              Never the sign of a buttoned-up argument.

              state-sanctioned harassment of the President
              from His tweets to your keyboard, eh?

              1. “There is no requirement that the investigation have a particular crime cited at it’s outset, though.”

                Right, target first, crime second. Seriously, you wrote that?

                The requirement to have some reason to believe a crime took place before investigating is one of the fundamental protections against police abuses. “and no Warrants shall issue, but upon probable cause”

                What did you think it was probably cause of? It’s probably cause to believe evidence of a crime would be found.

                You don’t have that if you don’t have a crime to begin with.

                1. Investigating an event or even potential event isn’t novel.

                  Investigation is pre-warrant. You don’t need probable cause to start an investigation. You never have.

                2. “Right, target first, crime second. Seriously, you wrote that?”

                  It’s the crime first, target second. That’s how investigations work. That’s what happened.

              2. “There is no requirement that the investigation have a particular crime cited at it’s outset, though.”

                “”Show me the man and I’ll show you the crime.” – Sarcastr0, or Beria?

                1. C_G we have functioned without that requirement for quite a long time and managed not to turn into the USSR so far.

              3. “There is no requirement that the investigation have a particular crime cited at it’s outset, though.”

                Yes, there is!

                “? 600.1 Grounds for appointing a Special Counsel.
                The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

                (a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

                (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

                Criminal investigation. What crime? This should be obvious, even to you.

            2. One problem with the special prosecutor is that what crime Trump may have committed was never specified. A

              The special prosecutor was not tasked to prosecute Trump, so that hardly seems like a problem. He was tasked to investigate Russian interference in the election.

              1. “The special prosecutor was not tasked to prosecute Trump, so that hardly seems like a problem. He was tasked to investigate Russian interference in the election.”

                If he’s investigating, why is he called a special investigator, and not a special prosecutor?

                The enabling statute requires that a crime be investigated, not “Russian interference in the election,” which I don’t think is a crime. “Interference” is what we call it, while all it appears they did was place some relatively minuscule amount of stuff on Facebook. It’s not like anyone suspects they tampered with vote tallies, with voting machines; bribed election officials; killed people.

                1. If he’s investigating, why is he called a special investigator, and not a special prosecutor?

                  I assume you phrased that backwards, but he’s not called either. He’s called special counsel.

                  The enabling statute requires that a crime be investigated, not “Russian interference in the election,” which I don’t think is a crime.

                  Whether you think it’s a crime isn’t the issue. The issue is whether it could possibly be a crime. And it could. You forget the DNC hacking, for instance, which was indisputably a crime.

      2. You know it is all ginned up Sarcastrated. You are not that dumb. Everyone, except for Liberals who have drank the kool-aid realize this after two years. The whole Russia thing is a joke and a manufactured controversy. It always has been.

        Now that the Left has dragged on the Russia thing past the mid-terms they know it must be folded up now. You can see them bracing for this by trying to convince the public that there will be a cover up of the Mueller report.

        And oh yeah….just ignore the fact that career bureaucrats were planning a COUP against Trump.

        And oh yeah….Hilary totally didn’t have an illegal email server running for years and Billy Boy didn’t meet the FBI director on the tarmac for a private meeting ordering an end to the investigation. That totally totally didn’t happen.

        1. How long was Watergate investigated? Benghazi? 2 years is nothing.

          Maybe the Mueller report will turn up nothing on Trump, I don’t know, but I’m pretty sure it’s finding a bunch of people willing to lie about their ties to Russia for some reason or another. I don’t know if there’s a crime, but a lot of people seem to be going down over the coverup.

          career bureaucrats were planning a COUP against Trump
          A bunch of Trump appointees among those evil bureaucrats.

          Hilary totally didn’t have an illegal email server
          Neato distraction. Not so happy with the topic before you, I guess?

          1. ” I don’t know if there’s a crime, but a lot of people seem to be going down over the coverup.”

            That’s such bullshit. What coverup? Coverup of what? What have “a lot of people” gone down for that’s even remotely related to Trump or some supposed Russian collusion (which would not be a crime, BTW)?

            1. I mean, there was collusion insofar as passing private polling to agents of the Russian government for…reasons.

              I don’t know a coverup of what, all I know is a bunch (four I think) of people on the Trump campaign are going to jail for lying about whether they were in contact with Russia, and others have had to amend statements sworn and unsworn to the effect that actually they were in contact with Russian agents.

              I’m not going to draw any further conclusions than the one you quoted – a lot of people are in trouble for all lying about their ties to Russia to conceal them from law enforcement. Ties to Russia are not always a crime (sometimes they are). Lying about them to law enforcement is. What do you call that, if not a coverup?

              1. Collusion is not a crime. And the folks prosecuted weren’t prosecuted for anything to do with Russia, except the bullshit prosecutions of “thirteen Russian nationals” and “twelve Russian agents,” none of which has ANYTHING to do with Trump.

                Other than them there’s Flynn, Gates, Zwaan, Kilimnik, Manafort, Papadopoulos, Pinedo, Cohen, and Stone.

                You tell me, please, what crime Trump is alleged to have committed, and how these people are related to that.

                This is a witch hunt, worthy of the Russians themselves!

          2. “A bunch of Trump appointees among those evil bureaucrats.”

            These were all Obuma appointments sticking around until they eventually got the boot with the new administration.

            “How long was Watergate investigated? Benghazi? 2 years is nothing.”

            So who is talking about “neato distraction(s)” now??

            1. How soon you forget Rosenstein.

              1. Classic Sarcastrated!

          3. Oh, Benghazi? You mean the absolute barratry of 44* and SecState Clinton, resulting in the death of a U. S. Ambassador? It’s not been investigated enough, since they’re still both walking about free.

        2. And oh yeah….Hilary totally didn’t have an illegal email server running for years and Billy Boy didn’t meet the FBI director on the tarmac for a private meeting ordering an end to the investigation. That totally totally didn’t happen.

          I mean, you are indeed correct that neither of those things happened.

          1. Yeah sure that n-e-v-e-r happened. That is why both Clinton and Lynch were lying their behinds off and couldn’t even come up with a straight story as to the meeting (see investigator general report).

            1. Not only are your comments false, but Lynch wasn’t the FBI director.

  7. The coup that didn’t happen has drawn as much attention as Sherlock Holmes’s dog that didn’t bark.

    Yes, it would have been an abuse of the 25th to use it for this purpose. I presume that’s why they decided not to.

    1. I think you presume a little bit too much there. If the 25th Amendment was tried to use to remove Trump (something that was boldly advocated for by the mainstream left wing media) it probably would have meant Revolution and would have taken us as close to a civil war as we have seen since the actual civil war. And I don’t say this jokingly either.

      1. The previous 25A rumblings in the media that I recall weren’t a reaction to the Comey firing, they were about incapacity due to some presumed psychological impairment. Congress would never have let that stand either, but at least that is the kind of issue that the 25th is supposed to address.

    1. No one actually believes the whole Russia thing isn’t just one giant manufactured plot. Not even the Left believes it.

      1. Commentary worthy of Pauline Kael.

    2. It’s easy to see why the author of that piece writes under a pseudonym; I’d be embarrassed to put my name to that piece, too. Of course, he writes for the embarrassment that’s The Federalist, so he can’t have too much of a sense of shame.

  8. Leaving aside coups and exciting things like that, the more prosaic question is – what business is it of the FBI or DoJ to consider removing the President under the 25th Amendment ? It doesn’t seem to have anything to do with either investigating crime or conducting counter-intelligence investigations. Spending FBI time and money on 25th Amendment planning has nothing to do wth the FBI or DoJ. If it’s anybody’s responsibility to set the ball rolling, and for that matter to form a view on the constitutional threshold of “unable”, it would be the Vice President.

    If we stipulate, for amusement’s sake, that there were folk in the FBI who honestly thought that the circumstances set out in the 25th Amendment might be applicable – what possible excuse did they think they had to discuss the matter on the company’s time ?

    1. The 25th Amendment requires that the veep and the members of the cabinet make the determination. DoJ is part of the cabinet.

      1. DoJ is part of the cabinet.

        No it isn’t. The DoJ is an executive department, the Attorney General is one of “the principal officers of the executive departments” so if Jeff Sessions required his subordinates to assist in helping him reach a conclusion on whether Trump’ was “unable” etc, then his subordinates would have been justified in spending time and effort doing so. Considering the unfitness of the President is not a function of the executive department, it’s a constitutional duty of the principal officer personally. (Though strictly it’s only a “duty” in the sense of the Senate’s advise and consent duty – it’s not an imperative duty, it’s a voluntary act that may be taken by the princial officer, but which he is not obliged to take.)

        Absent such an instruction by Jeff Sessions personally, there’s no DoJ or FBi role in the process. Initiating such activity without the AGs instruction would be plainly extra curricular. Moreover, the Attorney General’s role in 25A is simply to decide whether the President is “unable” or not, not to attempt to count heads to see whether there’s a majority for “unable.’

        Anyway, absent an instruction from Sessions, McCabe and his cronies were off limits.

        1. Considering the unfitness of the President is not a function of the executive department, it’s a constitutional duty of the principal officer personally

          That seems to have come straight from your hat.

          1. So it would appear that I’m actually wearing the 25th Amendment :

            Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President

            And there we have it, direct from the Constitution … the principal officers of the executive departments…. – not a whisper about the DoJ, not a whisper of a role for the executive departments.

            1. It says principals are the ones to transmit, it does not say it cannot be in consultation with the executive department.

              Which makes sense because the administrative state was not really a thing when it was drafted.

              1. As well as saying it’s the principal officers who transmit, it also says it’s the principal officers who make a written declaration. Conspicuous by its absence is any mention of anyone else working for the executive departments, or the executive departments themselves. The written declaration and the transmission is expressily a job for the principal officer personally.

                Which is not so say that the principal officer can’t consult with other members of the executive department. Which is why I said : “so if Jeff Sessions required his subordinates to assist in helping him reach a conclusion on whether Trump’ was “unable” etc, then his subordinates would have been justified in spending time and effort doing so”

                Nor does it say that the principal officer can’t consult with his wife, his caddie or his barber. But what it does say is that it’s a job for the principal officer. Consequently, unless the principal officer asks them to help, the members of his department are not entitled to spend government time and government money on the matter. They, like his wife, caddie and barber are of course perfectly welcome to spend their own time and their own private money researching the question and offering their unsollicited advice to the principal officer.

                1. So if McCabe and pals :

                  (a) did their 25A planning on their own time, off government premises and did not use government resources (eg their government phone, texts, emails or notepaper) or

                  (b) Jeff Sessions asked them to help, in reaching his conclusion for 25A purposes

                  then they were not breaking any rules. Wanna bet one of those happened ?

  9. The great an wunnerful FBI.
    (Where’s my McKayla Maroney is Not Impressed gif?)
    From the days of CoIntelPro (the egg of the deep state) til today.
    Trying to pressure Martin Luther King into suicide.
    Running Bob Williams of Monroe NC out of the country because he was more popular in some circles than MLK.
    Orchestrating the summary execution of Fred Hampton by the Chicago PD.
    Then there were the FBI informant and ATF undercover who set up the Communist Workers Party, Ku Klux Klan, and American Nazis to off each other in the unnecessary and avoidable Greensboro Massacre.
    And the Ruby Ridge Standoff.
    And the Waco Siege.
    And orchestrating the summary execution of LaVoy Finicum by the Oregon State Police.

    These are the people who should pick presidents?

  10. Getting back to the original topic, it occurs to me there is yet another possible justification for the Special Counsel appointment, namely that Mueller is not a principal officer, nor an inferior officer, but merely an employee. “How so?” i hear you ask. Well, as the paper’s authors point out, the AG does not have blanket authority to create inferior offices like some other department heads do, but he does have statutory powers they don’t. First, all of the authority given to anyone in the DoJ (there are a few exceptions but none relevant here) is vested in the AG, by virtue of 28 USC ?509:

    All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except …

    Second, he has an unlimited authority to delegate according to 28 USC ?510

    The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

    And so, if Mueller’s position wasn’t created, or his appointment made, consistent with the Constitutional requirements for an officer, he can only be an employee. But that designation isn’t a barrier to him being delegated any, or even all, of the Attorney General’s functions, including ones he has up-inherited from US Attorneys and from the FBI.

    1. That thought is explored here :

      https://papers.ssrn.com/sol3/papers.cfm?
      abstract_id=3214158

      to what seems to me to be a not very definitive conclusion.

      1. Thanks Lee. You’re right, their conclusion (such as it is) is that Lucia v. SEC has muddied the waters and it isn’t clear how they will eventually settle.
        Here’s another link to the SSRN paper for folks who had trouble with it.

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