The Special Counsel Appointment: Is It Really Unconstitutional?

Special Counsel Robert Mueller’s investigation is unconstitutional. That is the provocative verdict expressed by Northwestern University Professor of Law, Steven G. Calabresi, in a recent Wall Street Journal op-ed.

Briefly, Professor Calabresi argued that the Constitution’s “Appointments Clause” (Article II, Section 2, Clause 2) deprives the Deputy Attorney General of the authority to appoint a Special Counsel. Calabresi asserts that the Special Counsel is, in substance, a “principal officer” who would need to be appointed by the President. Therefore, the appointment is unconstitutional.

Calabresi explained:

At issue is the Constitution’s Appointments Clause, which provides that “principal officers” must be appointed by the president with the Senate’s consent. Rehnquist wrote that independent counsel Alexia Morrison qualified as an “inferior officer,” not subject to the appointment process, because her office was “limited in jurisdiction” to “certain federal officials suspected of certain serious federal crimes.”

Mr. Mueller, in contrast, is investigating a large number of people and has already charged defendants with many different kinds of crimes, including—as in Mr. Manafort’s case—ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving…

Calabresi added that Chief Justice William Rehnquist’s majority opinion in Morrison v. Olson “has never been overturned.” So, must one conclude that the Special Counsel’s appointment is unconstitutional and that all of his actions must, therefore, be voided on such grounds?

Perhaps not.

In Morrison, Chief Justice Rehnquist laid out three criteria that demonstrated that Independent Counsel Alexia Morrison, was an “inferior officer:” (1) Morrison was subject to removal by a higher Executive Branch official; (2) Morrison was “empowered” by the Independent Counsel Act “to perform only certain, limited duties”; and, (3) Morrison’s office was “limited in jurisdiction.”

Those “tests” have relevance to the Special Counsel. First, the Special Counsel may be “disciplined or removed from office” by the Attorney General under 28 CFR 600.7. Second, the Special Counsel has been given broad but still limited authority under 28 CFR 600.6. In part, that section declares, “…the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. “ Third, the Special Counsel’s jurisdiction is limited under 28 CFR 600.4. In part, § 600.4 states, “The Special Counsel will be provided with a specific factual statement of the matter to be investigated.” That requirement was satisfied by the Deputy Attorney General’s order to appoint the Special Counsel. All of Chief Justice Rehnquist’s “tests” appear to have been met.

That leaves open the question as to whether § 600.6 renders 28 CFR 600 (a regulation drawn from 28 U.S.C. 510), which relates to the general powers of the Special Counsel, unconstitutional. After all, a United States Attorney is considered a primary officer.

Not necessarily. If one compares the jurisdiction of the Special Counsel with that of a United States Attorney, there’s a substantial and potentially legally-significant difference. 28 U.S.C. 547 states that “each United States attorney, within his district shall prosecute for all offenses against the United States…” The ability to “prosecute for all offenses” is a far broader mandate than one’s being empowered to investigate “a specific factual statement.”

Further, there are circumstances under which U.S. courts have found that the United States Attorney can be regarded as an inferior officer. The United States Court of Appeals, First Circuit, ruled in United States v. Hilario:

Accordingly, we conclude that United States Attorneys are to be regarded as inferior officers if their work is “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate,”… and, if not, might still be considered inferior officers if the nature of their work suggests sufficient limitations of responsibility and authority… That decision upheld the Attorney General’s authority to make temporary United States Attorney appointments to fill vacancies.

To the extent that the Special Counsel can be viewed substantively as a United States Attorney with a limited mandate, the Special Counsel could be regarded as an inferior officer. If so, the appointment would be held as valid.

Finally, Calabresi’s argument runs into insurmountable logical hurdles. If only the President could appoint a Special Counsel to look into legal matters, including those that relates to the President, then the President would possess the constitutional authority to hold himself above the law. There is no indication that the Founders intended that the President should be above the law or immune to its requirements.

To date, the Supreme Court has not heard any cases regarding the constitutionality of a Special Counsel appointment. Taking into consideration a clearly written statute (28 U.S.C. 510) and accompanying regulation (28 CFR 600), the Attorney General’s/Deputy Attorney General’s capacity to direct and supervise the Special Counsel “at some level,”, and case law, the legal argument that his appointment is unconstitutional is not the only such argument that can be made. That debate likely won’t be settled unless the constitutionality of the appointment is actually challenged in court.

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About Don Sutherland 83 Articles
Husband. Dad. American. Believes in America on account of its Constitution, ideals, and people. Character, principle, truth, and empirical evidence matter greatly everywhere, including politics and public policy.