Robert Mueller and his band of erstwhile “Special Assistant United States Attorneys” have power to which they are not entitled — in violation of the checks and balances and separation of powers spelled out in the U.S. Constitution, full stop.
Former U.S. Department of Justice Chief of Staff, radio and TV host, and constitutional litigator Mark Levin, pulled the pin on the constitutional grenade this week, laying out the case that the Article II Appointments Clause requires Senate confirmation for U.S. Attorneys, which Mueller has effectively become. Further, Levin argues that the limitless mandate given to Mueller violates the very statute that allows for the appointment of a Special Counsel.
My friend Mark Levin is right. And there’s more to this constitutional examination than meets the eye.
Recent federal court filings involving former Trump campaign associates Paul Manafort and Richard Gates raise further suspicions that Acting U.S. Attorney General Rosenstein unilaterally assumed the presidential appointment power when he appointed Robert Mueller as special counsel.
Rosenstein claims he appointed Mueller as Special Counsel pursuant to statute 28 U.S.C. 515. A Special Counsel may only investigate and prosecute cases within a particular jurisdiction, as defined by the Attorney General. 28 C.F.R. 600.4(a); 28 C.F.R. 600.6. While he may have the full power of a United States Attorney to investigate and prosecute, again, that power is limited to only those cases that fall in the pre-defined jurisdiction. We need to see the memos authorizing Mueller and his team.
As we argued in 2016 before the U.S. Supreme Court about President Obama’s controversial and ultimately unconstitutional recess appointments to the National Labor Relations Board, “the record from the Constitutional Convention of 1787 indicates the Framers’ determination to limit the distribution of the power of appointment . . . the Appointments Clause of Article II is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.”
Fast forward to the appointment of Mueller and his associates: Rosenstein’s tortured bootstrap theory is that, because he has ‘authority’ as the Acting Attorney General for the Russia investigation, he believes he therefore has the authority to invest the Special Counsel with near-limitless power to exercise the prosecutorial hammer of the Justice Department, as a de facto extension of the Attorney General himself, without Senate confirmation.
Congress gave the Attorney General statutory authority to appoint “attorneys to assist United States attorneys when the public interest so requires.” 5 U.S.C. 543(a). SAUSAs have “the same authority as the United States Attorney for the district.” United States v. Tedesco, 441 F. Supp. 1336, 1342 (M.D. Pa. 1977). In other words, they have much broader authority than a Special Counsel. By appointing four attorneys (three of which are known Democrat donors) who report directly to Special Counsel Robert Mueller as Special Assistant United States Attorneys, Rosenstein effectively turned Robert Mueller into a U.S. Attorney.
This is important for 2 key reasons:
1. The appointment of SAUSAs to Robert Mueller’s team arguably gives him the same authority as a United States Attorney and removes the checks put in place by Congress on a Special Counsel’s authority to investigate and prosecute.
2. Only the President has the authority to appoint U.S. Attorneys. 28 U.S.C. 541. And, he can only do so with the advice and consent of the Senate. U.S. Const. Appointments Clause, Art. II Sec. 2, cl. 2.
Keep in mind that equating the Clinton-era Independent Counsel investigation and prosecutions to current Special Counsel status is comparing apples to oranges. In that era, a federal statute existed which gave judicial authority for appointment of an Independent Counsel to operate outside the vectors of the Department of Justice. That statute was allowed to expire in 1999 by large majorities in Congress due to objections to wide-sweeping and nearly boundless authority given to the Independent Counsel. In short, the Independent Counsel model didn’t pass the constitutional smell test.
Today, the Special Counsel statute and its related provisions are more closely drawn to keep the Special Counsel’s jurisdiction limited, under supervision of the Attorney General, and on point with the matters laid out by his commission. But what Rosenstein and Mueller have wrought is a Special Counsel with the same apparent authorities as the now-defunct Independent Counsel.
More importantly, the scheme to bootstrap Mueller and his associates into Justice Department equivalents without the anchor of constitutional checks and balances violates the other key tenet of the Article II Appointments Clause: preserving “the Constitution’s structural integrity by preventing the diffusion of the appointment power.” Freytag v. Comm’r, 501 U.S. 868 (1991). Toward that end, Congress and the courts must weigh in.
Todd Young serves as Executive Director for Southeastern Legal Foundation (SLF), an Atlanta-based national constitutional public interest law firm founded in 1976. In his role at SLF, he has worked closely in an advisory capacity with former U.S. Attorney General Edwin Meese III, former Independent Counsel Judge Kenneth Starr, former Speaker of the House Newt Gingrich, and various members of Congress and state governors and attorneys general. To read more of his reports — Go Here Now.
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