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Will: Is Trump right about Mueller’s appointment?

By George Will
Published: July 15, 2018, 6:01am

The president, who might not be fully acquainted with the pertinent Supreme Court case law, says the appointment of Robert Mueller as special counsel was unconstitutional. The president’s opinion, because it is his, is prima facie evidence for the opposite conclusion. It is, however, not sufficient evidence. Consider the debate between two people who have immersed themselves in the history of the Appointments Clause, which says:

“(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.”

The debate turns on the distinction the Supreme Court has drawn between “inferior” and “principal” officers. If Mueller is among the latter, his appointment was invalid because he was neither nominated by the president — he was appointed by Deputy Attorney General Rod Rosenstein — nor confirmed by the Senate. Steven G. Calabresi, professor at Northwestern University Law School and co-founder of the Federalist Society, argues as follows:

By “long-standing practice,” Congress and the executive branch give principal-officer status to all “important and powerful” officials, even those who have a boss who can fire them. In 1976, the Supreme Court invalidated the law that created the Federal Election Commission to be composed of two members nominated by the president, two by the speaker of the House and two by the president pro tempore of the Senate. The court held that all six must be nominated by the president as principal officers. Mueller, says Calabresi, is much more important and powerful than an FEC member. Congress has stipulated that the 93 U.S. attorneys are principal officers, and Mueller has, Calabresi says, “acted and has behaved like,” and is “much more powerful than,” any U.S. attorney. Compare, for example, Mueller’s job relative to that of the U.S. attorney for Wyoming. Mueller has “nationwide jurisdiction” and powers (e.g., to indict foreign citizens and corporations “without clearance from [the Justice Department]”) that have had “a major effect on” U.S. foreign policy, powers that “in effect and in practice” are “akin to” those exercised by an assistant attorney general, a principal officer. Mueller has been “without any real supervision” by Rosenstein, “who has treated Mueller as if he was ‘independent.'”

Disagree on momentous matter

Writing in vigorous rebuttal, George Conway, a New York lawyer (whose wife Kellyanne works for the president who hopes Calabresi is correct), argues that Calabresi incorrectly asserts that Mueller must be a principal officer because he does not have a supervising and directing boss.

Two intelligent lawyers disagree about this momentous matter, concerning which the Supreme Court’s nine justices might be dispositive. If Mueller’s appointment is challenged, and the case gets to the court, and five justices reason as Calabresi does, Mueller’s subpoenas, indictments and other acts will be null and void.

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