The “Appointments Clause” Proves Mueller’s Appointment Is Unconstitutional!
by Gary Spina
Citing the “Appointments Clause” of the Constitution, syndicated radio talk-show host Mark Levin has challenged the legality of Robert Mueller’s appointment as Special Counsel — squaring off against Fox News Senior Judicial Analyst, Judge Andrew Napolitano, whom Levin says is unfamiliar with the Constitution.
Also at issue also is whether the Department of Justice – and specifically Robert Mueller — can indict a sitting United States president. Going back to the Nixon and Clinton impeachment proceedings, Levin cites two memos to the DOJ from the Office of Legal Counsel which handles Constitutional questions. Both memos state a president cannot be indicted while he holds office. Napolitano acknowledges the two memos, but says they are contradictory – one claiming a president can be indicted, another claiming the opposite.
“Napolitano needs to produce the DOJ memo from the late 1990’s that cites a president can be indicted,” Levin said on his radio show. “He can’t because it does not exist.”
Additionally, four of Mueller’s investigators claim to have “Special Assistant U.S. Attorney” status. Since these attorneys are supervised by Mueller and answer directly to him, Mueller has assumed “Special U.S. Attorney” status, which makes him a “principal officer” under the requirements of the Appointments Clause.
“Robert Mueller’s appointment violates the Appointments Clause of the U.S. Constitution,” said Levin. “Given the power that Mueller is exercising and the fact that (Deputy Attorney General) Rod Rosenstein is not supervising his work directly, it is inaccurate to classify him as an “inferior officer” in the Department of Justice. He qualifies as a “principal officer,” a class of federal officials like a United States attorney that the Supreme Court has ruled must be appointed by the president and confirmed with consent of the U.S. Senate.”
Yet, Mueller has neither been appointed by the president nor confirmed with consent of the Senate. Instead he was appointed by Rosenstein and given a wide breadth and an unfettered scope of prosecutorial power. Rosenstein has taken a hand-off approach to the investigation.
“Rosenstein mostly rubber stamps Mueller’s decisions,” Levin said, “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.”
Levin said, “Rosenstein did not have the constitutional power to appoint a principal officer on his own anymore 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.”
Levin, is a former advisor in the Reagan administration and former Chief of Staff for Attorney General Edwin Meese. He is president of the Landmark Legal Foundation and Editor-in-Chief of the Conservative Review and is the author of several books on the Constitution, the founding fathers, and the Supreme Court.
In a professional Hat Tip to Northwestern Law School Professor Steven Calabresi, Levin credits him with raising “many of these points, and more, with me and a few other friends and colleagues over the weekend, in a well-researched opinion he shared with us.”
Image from marklevinshow.com