Posted on 05/13/2018 8:33:49 PM PDT by Meet the New Boss
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Mr. Mueller’s investigation has crossed a constitutional line, for reasons the U.S. Supreme Court made clear in the 1988 case Morrison v. Olson. That case is best known for Justice Antonin Scalia’s powerful lone dissent arguing that the post-Watergate independent counsel statute was unconstitutional. But Chief Justice William Rehnquist’s opinion for the court, while upholding the statute, set forth limits that the Mueller investigation has exceeded.
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. Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys.
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As a principal officer, Mr. Rosenstein could legally have brought all the indictments Mr. Mueller has. But he may not delegate that authority to Mr. Mueller, any more than President Trump could delegate his veto power to Mr. Rosenstein.
(Excerpt) Read more at wsj.com ...
The constitutional violation Calabresi points to is mirrored by a specific legal drafting defect in the Special Counsel regulations, which explicitly purport to vest in a Special Counsel "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney". (28 C.F.R. § 600.6).
See my earlier analysis here:
https://www.freerepublic.com/focus/f-news/3560542/posts
Not only the Constitution, but congressional statutory law (28 U.S. Code § 541) confirms that US Attorneys must be appointed by the President and confirmed by the US Senate.
Indeed, in at least one important respect, Special Counsel Mueller has greater powers than a US Attorney: Mr. Mueller is not limited to bringing criminal indictments in a particular U.S. judicial district; he may roam the entire country and bring criminal indictments wherever he pleases.
Mr. Mueller is investigating a large number of people.
He has already charged defendants with many different kinds of crimes unrelated to his announced endeavor......
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.
Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys.
At issue is the US Constitution’s Appointments Clause, which provides that “principal officers” must be appointed by the president with the Senate’s consent.
Mueller has become a self-appointed Torquemada, charging anyone he wants with any crime he wants. The only end that justifies the means is getting Trump.
This investigation has always been a political enterprise that is seeking to indict Trump in any way possible. As such its “legality” will be determined by the political perspective of the judges that hear the case. Partisan Democratic appointees will do all they can that any evidence, however it was obtained or manufactured that harms Trump will be admissible. It may ultimately not hold up on appeal or rational analysis but the purpose has always been to mortally wound Trump politically so as to ensure his impeachment by a Democratic Congress and at the least prevent him from being reelected or being able to implement his policies.
IMHO I believe Trump wants this to continue. He gets to play the victim, knowing he can stop this at his liesure It keeps us (his base) PO’d and depresses the left as mueller keeps failing and flailing. We keep voter turn out up and exposing the swamp creatures.
In essence what Rosenstein has done is take someone off the street (not someone already a prosecutor) and purport to vest that person with all the awesome power and authority of a United States Attorney. But without having to go through the nomination and confirmation process of an actual US Attorney.
I gather that Rosenstein senses that legally speaking he is on thin ice as to the validity of the Mueller appointment, based on what I heard from him the other day at his talk at the Newseum.
Rosenstein made a passing remark about the legal basis for appointing special counsels and indicated that the legal power for the DOJ to appoint a de facto US Attorney like Mueller derives from the same source by which the Attorney General can appoint a temporary US Attorney when the post is vacant.
But that’s really apples and oranges and shouldn’t get them far with a good judge.
Why the HELL does Trump still have Democrats working in his White House?
Nobody will do a thing about Mueller and his investigation until he submits his report.
Too bad Trump doesn’t have the gonads to Fire Him.
Interesting viewpoint............
then the dems will have articles of impeachment fodder. If Mueller continues unabated he will find something. No one is crystal clear.
Scalia was right. The statute is unconstitutional.
The dims would impeach him for breathing if they had the house. Then try to get 66 senators to vote to convict with his poll numbers at 49 to 50%. Ain’t happening. Slick Willy was impeached. Nixon wasn’t he resigned with poll numbers in the trash. This ain’t watergate or Clinton. Billy’s numbers were up. Mad Max can rave on like cat crap something will come along and cover her up.
Yeah, why doesn’t he interrupt the enemy as he’s making a mistake?
Ellis will dismiss to save Mueller from real legal jeopardy. The swamp lives on.
That's a sugar-coated way of saying he broke the law. Why the hell hasn't he been arrested?
Oh. Right. Because Jeff Sessions is part of the swamp.
Mueller is corrupt.
Scalia was right. But thank God he was not in the majority or else we wouldn’t have had Ken Starr, Monica Lewinsky and the Clinton impeachment.
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