What If The Constitutional Challenge to Mueller’s Power Prevails?
A constitutional law attorney has challenged the legitimacy and powers of Special Counsel Robert S. Mueller in a federal court of appeals. “This challenge will go to the Supreme Court of the United States,” attorney Paul Kamenar predicts.
What will happen if the arguments prevail in the Supreme Court and Mueller’s authority is ruled unconstitutional? “The other pending Special Counsel prosecutions or convictions on appeal would have to be invalidated,” Kamenar explains.
Kamenar is representing Andrew Miller, who was subpoenaed by Mueller using his powers as Special Counsel to testify against the subject of one of Mueller’s investigations, Roger Stone. While Miller was but a young aide and seemingly not all-that-relevant to the criminal investigation, the circumstances surrounding Mueller relying on his Special Counsel powers to make demands of the aide have presented a unique legal opportunity for Kamenar to challenge the arguably illegal powers being exercised by the Special Counsel.
This is the first and only case to challenge the legitimacy of Mueller’s appointment in a court of appeals.
According to Kamenar, there are only two constitutionally permissible options for Special Counsel to have been appointed in the U.S. government:
Option 1: an officer can be nominated by the President, then confirmed by the Senate, and then appointed by the President.
Option 2: Congress may create a law to skip over the nomination and confirmation process, and to vest the appointment of inferior officers in the President alone, in the court, or in the heads of departments, like an Attorney General.
Mueller’s appointment did not follow either of these two legal avenues.
Instead, Deputy Attorney General, Rod J. Rosenstein, using the stationery header of the Office of the Deputy Attorney General, appointed Mueller as Special Counsel. A Deputy Attorney General does not have the power to appoint inferior officers, per any U.S. law. Rosenstein justified the appointment under a power he claimed was vested in him under the title of “Acting Attorney General.” Except, Congress has not created a law vesting an Acting Attorney General with the power to create an inferior officer. Moreover, in justifying this exercise of power, Rosenstein relied on authority that he claimed was vested in him under laws written by Congress to govern the powers of the Attorney General. But the power to appoint an inferior officer is not listed in any of the laws written by Congress. Mueller’s appointment thus appears inconsistent with the law.
An Acting Attorney General simply does not have the power to appoint Special Counsel under U.S. law, Kamenar confirms. “The government’s asserted power to appoint Special Counsels under [inapplicable] statutes can lead to dangerous, if not absurd results,” Kamenar wrote in his brief. In a feeble effort to justify these violations of U.S. law, the government is trying “to string together bits and pieces from statutes to [attempt to] justify the appointment of the Special Counsel,” Kamenar added.
Moreover, Rosenstein is not, under any definition of the word, an Acting Attorney General. U.S. law spells out how one takes on the role of an Acting Attorney General, and this can happen only if the Attorney General “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Sessions did not die or resign, and he was not absent. Nor was he “otherwise unable to perform the functions and duties of the office.” For example, Attorney General Ashcroft could not perform the duties and functions of Attorney General from his hospital bed back in March of 2004, and he needed to appoint an Acting Attorney General to take over his duties. Jeff Sessions, on the other hand, has been readily performing the duties and functions of the office of Attorney General. Sessions simply recused himself on a single topic; he never abrogated any of his other responsibilities as Attorney General.
Rosenstein was merely serving in the capacity of Acting Attorney General for the limited purpose of allowing Jeff Sessions, the official Attorney General for all other purposes, to recuse himself from any matters arising from the presidential campaign. Rosenstein remained in the position of Deputy Attorney General for all other purposes and was only “Acting” Attorney General on this single issue. The justification for the exercise of appointment powers reserved by the Constitution for heads of departments, based on a mere recusal, does not convert a Deputy Attorney General into an Acting Attorney General, argues Kamenar. Based on Kamenar’s strict reading of the law and application to our current administration, “Jeff Sessions is the only officer at the DOJ who has the constitutional authority to appoint a Special Counsel as an inferior officer.” Since Sessions did not appoint Mueller, and there is no other lawful avenue for Mueller to have been appointed, then Mueller’s exercise of power is unlawful.
Robert Mueller filed his response to Kamenar on September 28, 2018, arguing that his appointment is valid and “makes logical and practical sense” under the circumstances. Kamenar’s reading of the law would yield an “illogical result” because the DOJ would be unable to act whenever a conflict of interest presents itself to an Attorney General, he explains in his brief. Mueller further argues that recusal is equivalent to disability and that Rosenstein acted lawfully.
Kamenar presents an additional argument: that Mueller acts like a “U.S. Attorney-at-large or a super U.S. Attorney with almost unlimited resources,” also in violation of the Constitution’s restriction on power. Mueller exercises more power than any of the Senate confirmed Assistant Attorney Generals and some Cabinet officers, does not answer to anyone, and he has no oversight. As such, Mueller cannot be simply viewed as an inferior officer. Instead, Mueller must be seen for how he acts, a principal or superior officer, Kamenar explains in his brief. “Mueller wields more power than any of the permanent U.S. Attorneys because he has nationwide and foreign jurisdiction, indicting three Russian business entities and more recently, a dozen Russian military intelligence officers on the very eve of our President’s Summit Meeting with the President of Russia. Robert Mueller is a principal officer.”
Mueller disagrees with the characterization, arguing that he is subject to oversight by the Acting Attorney General Rosenstein and that he acts squarely within his powers. Mueller argues that Rosenstein can stop him at any time. Coincidentally, Rosenstein will be meeting with President Trump this week to discuss his alleged bias against the President and an alleged scheme to remove Trump from office.
A recent Trump appointee, Judge Dabney L. Friedrich, has upheld Special Counsel’s powers in the U.S. District Court for the District of Columbia in August of 2018. “Even though no statute explicitly authorizes the Acting Attorney General to make the appointment, Supreme Court and D.C. Circuit precedent make clear that the Acting Attorney General has the necessary statutory authority,” Judge Friedrich explained. “Nor has the Special Counsel exceeded his authority,” she added.
Kamenar and his client Miller disagree with Judge Friedrich’s ruling. That is why Andrew Miller v. United States is pending before the United States Court of Appeals in D.C., Judge Brett Kavanaugh’s courthouse. Irrespective of this court’s decision, a Supreme Court review of this issue is imminent, according to Kamenar.
President Trump has not commented on the litigation but is likely to agree with Kamenar. The President frequently tweets about the Mueller probe, calling the Special Counsel investigation “illegal” and “not allowed under the law.”
If Kamenar ultimately prevails on his arguments, then questions will be raised as to the legitimacy of all other investigations and prosecutions by Mueller’s office. Will all subpoenas lose their fortitude? Will all pending charges have to be dropped? Kamenar believes the answer to those questions will be yes. As to the convictions that Mueller’s office has obtained based on plea deals, that answer will be more complicated.
A win for Kamenar and his client Miller will have dire implications for Mueller’s team. They have spent the past year and a half investigating the “Russian collusion” of Trump’s campaign and have brought criminal charges against numerous individuals, albeit no one has actually been charged for activities consistent with the theory of a “Russian collusion.” At a time when Special Counsel Robert Mueller is finally on a roll, obtaining the cooperation of Paul Manafort, the court’s decision on this issue will be of critical importance.
For now, we need to wait and see what happens in the Court of Appeals. Oral arguments are scheduled for November 8, 2018.