JANETS WORLD:
YOU’RE FIRED!
The appointment of Robert Mueller violates the Appointments Clause of the Constitution.
The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate, and with the advice and consent of the United States Senate, appoint public officials. Although the Senate must confirm certain "principal" officers, Congress may by law delegate the Senate's advice and consent role when it comes to "inferior" officers.
Trump has requested that the Inspector General look into irregularities in the FBI’s investigation into his then-campaign. Then, James Clapper should be dragged in front of a federal grand jury to know what this man did! And so should James Comey, John Brennan Susan Rice, and Samantha Power for the same reason!
Mueller is not an inferior appointee, but a principal appointee as understood under our constitution. His powers are more akin to a United States attorney, not an assistant United States attorney. Moreover, his boss, Deputy Attorney General Rod Rosenstein, treats him as a principal officer — that is, Mueller is mostly free to conduct his investigation with few limits or restraints. The parameters of his appointment were extraordinarily broad in the first instance, and have only expanded since then.
Indeed, Mueller is more powerful than most United States attorneys, all of whom were nominated by the President and confirmed by the Senate as principal officers. Furthermore, Rosenstein mostly rubber stamps Mueller’s decisions and is not involved in the regular management and oversight of Mueller to any significant extent, underscoring Mueller’s role, not as an inferior officer but a principal officer.
As such, Mueller’s appointment violates the Appointments Clause. Mueller would’ve had to be nominated for Senate confirmation like any other principal officer in the Executive Branch. Rosenstein did not have the constitutional power to appoint a principal officer on his own any more than the President himself does. To do otherwise is to defy the procedure established by the Framers for making such consequential executive appointments.
It follows, then, that every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void. Every defendant, suspect, witness, etc., in this matter, should challenge the Mueller appointment as a violation of the Appointments Clause.
It’s unconstitutional under Morrison v. Olson—the decision, not the dissent. Morrison v. Olson, 487 U.S. 654, is a United States federal court case in which the Supreme Court of the United States decided that the Independent Counsel Act was constitutional.
Judge T.S. Ellis has expressed skepticism about the scope of special counsel Robert Mueller’s investigation. “What we don’t want in this country is . . . anyone with unfettered power,” Judge Ellis, who is to preside over the trial of former Trump campaign manager Paul Manafort, told prosecutor Deputy Solicitor General Michael Dreeben May 4. “So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers.”
Judge Ellis is right to be skeptical. Mr. Mueller’s investigation has crossed a constitutional...
Ellis repeated his suspicion that Mueller's office was after Trump several times in the hour-long court hearing. He said he'll make a decision at a later date about whether Manafort's case can go forward.
Manafort has asked the judge to review Mueller's authority to bring charges in an investigation that began well before the special counsel's appointment and focused on actions years before the campaign.
Ellis expressed his concern with past independent investigations and asked how Manafort's case could connect to Russian influence in the 2016 US presidential election. Dreeben gave little new information about the scope of Mueller's investigation and Manafort's Russian ties but offered that both the Justice Department's national security and tax divisions had signed off on Manafort's charges.
"We don't want anyone in this country with unfettered power. It's unlikely you're going to persuade me the special prosecutor has the power to do anything he or she wants," Ellis told Dreeben. "The American people feel pretty strongly that no one has unfettered power."
When Dreeben answered Ellis' question about how the investigation and its charges date back to before the Trump campaign formed, the judge shot back, "None of that information has to do with information related to Russian government coordination and the campaign of Donald Trump."
At one point, Ellis posed a hypothetical question, speaking as if he were the prosecutor, about why Mueller's office referred a criminal investigation about Trump's personal attorney Michael Cohen to New York authorities and kept the Manafort case in Virginia. They weren't interested in it because it didn't "further our core effort to get Trump," Ellis said, mimicking a prosecutor in the case.
Prosecutors to turn over Rosenstein memo Mueller's prosecutors will have to turn over a full, unredacted version of the August 2 memo that Deputy Attorney General Rod Rosenstein used to describe the criminal allegations. The judge said he would like to see the full memo, which prosecutors submitted to the court in Virginia and in Washington with more than a page of redactions.
In any event, Mueller is not an “independent” prosecutor chosen by federal judges. He is an employee of the Justice Department, which is an executive branch agency entirely under the authority of the president.
So the bottom line is that Congress cannot limit the president’s authority to remove a political appointee such as Mueller.
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