# Constitutionality of Special Counsel



## Tehon (Jul 20, 2018)

Can someone explain to me how the special counsel is constitutional? I seem to be having a difficult time understanding why it is so.

Article 2 Section 2 clearly states that the President has the power to appoint officers of the United States who's position shall be established by law.



> He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.



I guess my first question would be; What law establishes the position of special counsel?


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## JakeStarkey (Jul 20, 2018)

I imagine the argument of "constitutionality" of a special counsel would determine whether Mueller's remit makes him a superior official, which requires Senate approval, whereas if he were an inferior counsel, that would not be the case.

Here is some reading, Tehon.  Was Mueller's Appointment 'Unconstitutional'? - FactCheck.org

_Not all constitutional scholars subscribe to that argument, however.

“The idea of Mueller is unconstitutional is preposterous,” Neal Katyal, a professor of national security law at Georgetown University, said in response to Kmiec’s argument in Newsweek in October. “I can’t imagine such an argument flying in the courts.”

David Sklansky, who teaches criminal law at Stanford, told us it is simply not accurate for the president to claim that the appointment of Mueller was unconstitutional.

“In 1988, the Supreme Court ruled in Morrison v. Olson that the Constitution allowed an Independent Counsel to be appointed by a three-judge court, completely separate from the Executive Branch,” Sklansky said via email. “In reaching that conclusion, the Supreme Court held that an Independent Counsel is an ‘inferior officer,’ not a ‘principal officer,’ for reasons that very clearly apply to Mueller: (a) he can be removed by a higher-ranking Department of Justice official, (b) he is authorized only to investigate and, if appropriate, prosecute, particular federal crimes, not to formulate Department of Justice policy, and (c) his jurisdiction is limited to the matters delegated to him by the Department of Justice.

“The only significant difference between Mueller’s appointment and the appointment scheme for Independent Counsels, upheld by the Supreme Court in Morrison v. Olson, is that Mueller, unlike the Independent Counsels, was appointed by President Trump’s own appointee, Deputy Attorney General Rod Rosenstein, rather than by a three-judge court,” Sklansky said. “But that just makes the argument for the constitutionality of Mueller’s appointment even stronger. Given the Supreme Court’s ruling in Morrison v. Olson, there is no remotely plausible argument that Mueller’s appointment was unconstitutional._”


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## Tehon (Jul 20, 2018)

JakeStarkey said:


> I imagine the argument of "constitutionality" of a special counsel would determine whether Mueller's remit makes him a superior official, which requires Senate approval, whereas if he were an inferior counsel, that would not be the case.
> 
> Here is some reading, Tehon.  Was Mueller's Appointment 'Unconstitutional'? - FactCheck.org
> 
> ...



Even if the special counsel is determined to be an inferior office,  Article 2 Section 2 clearly states that "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

You wouldn't by chance happen to be able to cite the law that vests the Attorney General with the power to appoint a special counsel, would you?

I had read the factcheck article, it was insufficient in helping me in my cause.


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## JakeStarkey (Jul 20, 2018)

Tehon, "may" is conditional not mandatory.  Nothing prevents the AG from appointing a Special Counsel.

The factcheck article was in fact more than sufficient in negating your cause.  iow, Mueller is constitutional.


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## Tehon (Jul 21, 2018)

JakeStarkey said:


> Tehon, "may" is conditional not mandatory.  Nothing prevents the AG from appointing a Special Counsel.
> 
> The factcheck article was in fact more than sufficient in negating your cause.  iow, Mueller is constitutional.


If that is the argument Jake, then I don't believe it is constitutional and I very much look forward to seeing how the motion to dismiss filed by Concord Management plays out in court.

"May" is conditioned on the appointment being "inferior" and it must be implemented "by law". Otherwise the appointment needs to be approved by Congress.

And BTW, the fact check article made clear that the premise has not been challenged and is a matter of debate among constitutional scholars.


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## JakeStarkey (Jul 21, 2018)

Nothing beyond the law, Tehon, requires inferior officers to be appointed by Congress.

Yes, it is a matter of debate, and the 'Mueller is not constitutionally appointed argument' is considered very weak.


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## Tehon (Jul 21, 2018)

JakeStarkey said:


> Nothing beyond the law, Tehon, requires inferior officers to be appointed by Congress.
> 
> Yes, it is a matter of debate, and the 'Mueller is not constitutionally appointed argument' is considered very weak.


You're being obtuse.

 Inferior officers need no congressional approval so long as there is a law that cedes their power and vests it in the President alone, the courts or department heads.

If your argument is that Mueller is an inferior officer who has been appointed by the head of a department, then the Constitution is clear that the department head must be vested with that power by law. There is no such law on the books that I am aware of that vests the power of appointment for special counsel in the Attorney General. If there was surely you would have pointed it out.

I understand it is not considered a strong argument. I don't understand why it is not. You can't point to a law that vests power in the AG to appoint Mueller, therefore he is appointed unconstitutionally. 

I must be missing something. It's too obvious.


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## JakeStarkey (Jul 21, 2018)

*George W. Bush and Barack Obama Both Popular in Retirement*
https://news.gallup.com/poll/.../george-bush-barack-obama-popular-retirement.aspx
Jun 19, 2017 - Former President George W. Bush's favorable rating has jumped to 59% ... Trend: Steady Improvement in George W. Bush's Favorable Rating Since He Left Office ... Barack Obama Maintaining Lame-Duck Surge in Popularity.


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## Tehon (Jul 22, 2018)

Below is an excerpt from the motion to dismiss filed in court by the defense counsel for Concord Management.

https://www.courthousenews.com/wp-content/uploads/2018/06/Concord-Motion-to-Dismiss.pdf
First, the Appointments Clause of Article II, § 2 of the United States Constitution requires that all “Officers of the United States” be appointed by the President and confirmed by the Senate, though “inferior Officers” may be appointed by the “Head[]” of a “Department[]”— in this case, the Attorney General—if Congress “by Law vest” a department head with the authority to do so. The Special Counsel is either a principal officer or an inferior officer. Regardless, his appointment is unconstitutional because he was not appointed by the President and confirmed by the Senate as required for a principal officer, and there was no statutory authorization (“by Law”) allowing the Deputy Attorney General to appoint the Special Counsel as an inferior officer and confer on him the Attorney General’s exclusive and plenary prosecutorial authority. Since the requirements of the Appointments Clause are not met, the Indictment must be dismissed.

Why are the people in support of Donald Trump, who generally regard the Constitution with reverence, quiet on this line of thought? Do they just accept that Janet Reno can write federal regulations with little regard for the Constitution?

The entire Mueller witch hunt is unconstitutional.


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## JakeStarkey (Jul 22, 2018)

That's your opinion, yes, Tehon,


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> That's your opinion, yes, Tehon,


It's fact, Jake.


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## JakeStarkey (Jul 22, 2018)

No, your opinion is not fact, Tehon.


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> No, your opinion is not fact, Tehon.


It is fact, the appointments clause is not ambiguous. All you have to do is point to the law that grants the Attorney General with the power of making the appointment of Mueller as special counsel. You have failed for the specific reason that there is none. 

The justification for it is a federal regulation written by Janet Reno which is not supported by any law. There was a law (Ethics in Government Act) but it was allowed to sunset in the late 90's. 

These are facts Jake.


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## JakeStarkey (Jul 22, 2018)

That is your legal opinion, but it is not fact.  Only a court can do that, and it has not.


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> That is your legal opinion, but it is not fact.  Only a court can do that, and it has not.


Lucky for us a court is hearing it as we speak.


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## JakeStarkey (Jul 22, 2018)

Yes, it is, and I feel confident that your arguments will be rejected.  Time will tell.


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> Yes, it is, and I feel confident that your arguments will be rejected.  Time will tell.


You lack the confidence to post the rationale for your belief that the special counsel is within the limitations of the Constitution. Thus your statement is taken with a grain of salt.


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## JakeStarkey (Jul 22, 2018)

I did post in a link above, and I agree with the opinions that Mueller's appointment is legal.  Be truthful with me at all times, because I am with you.


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> I did post in a link above, and I agree with the opinions that Mueller's appointment is legal.  Be truthful with me at all times, because I am with you.


Yes you posted a link, but your link fails to address the most glaringly obvious question that is being raised in this thread. Instead it frames the constitutional argument around whether the appointment is of a principle officer or an inferior one. What is being pointed out here in this thread is that the designation is irrelevant so long as no law exists that vests the power to appoint in a department head.

If we are being truthful we must admit that, on the surface, the Constitution is being circumvented with the appointment of Robert Mueller. We don't need a court to see that.


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## JakeStarkey (Jul 22, 2018)

I understand.  Since no law exists, the argument will have to be that one should exist.  That will be very hard to support in arguments.  The truth is that Mueller's appointment does not circumvent the Constitution.  Hoow could it?  Mueller's appointment is safe.  The only problem with honesty are the lawyers who are billing $700 an  hour on a case that should never have been filed.


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## C_Clayton_Jones (Jul 22, 2018)

JakeStarkey said:


> That is your legal opinion, but it is not fact.  Only a court can do that, and it has not.


Correct.

Acts of government are presumed to be Constitutional until such time as the Supreme Court rules otherwise.


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## Tehon (Jul 22, 2018)

JakeStarkey said:


> I understand.  Since no law exists, the argument will have to be that one should exist.  That will be very hard to support in arguments.  The truth is that Mueller's appointment does not circumvent the Constitution.  Hoow could it?  Mueller's appointment is safe.  The only problem with honesty are the lawyers who are billing $700 an  hour on a case that should never have been filed.


The only support needed for the argument that a law is necessary is the Constitution's appointment clause.

And the case was brought against them, that is why they are called the defense. It should be the easiest money they ever made.


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## JakeStarkey (Jul 22, 2018)

A very small chance. We will agree to disagree for now.


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## Tehon (Jul 22, 2018)

C_Clayton_Jones said:


> JakeStarkey said:
> 
> 
> > That is your legal opinion, but it is not fact.  Only a court can do that, and it has not.
> ...


If it gets that far.


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## yiostheoy (Jul 22, 2018)

Tehon said:


> Can someone explain to me how the special counsel is constitutional? I seem to be having a difficult time understanding why it is so.
> 
> Article 2 Section 2 clearly states that the President has the power to appoint officers of the United States who's position shall be established by law.
> 
> ...



U.S. Code, Title 28, Chapter VI, Part 600, Section 600.1
28 CFR 600.1 - Grounds for appointing a Special Counsel.


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## Tehon (Jul 22, 2018)

yiostheoy said:


> Tehon said:
> 
> 
> > Can someone explain to me how the special counsel is constitutional? I seem to be having a difficult time understanding why it is so.
> ...


Right, that is a federal regulation written by Janet Reno. It is unsupported by any federal code. There is no law that supports that regulation. Congress did not authorize it, therefore it is unconstitutional.


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## Tehon (Aug 5, 2018)

Tehon said:


> What law establishes the position of special counsel?


Answer:
The Attorney General may appoint officials—
(1)to detect and prosecute crimes against the United States

28 U.S. Code § 533 - Investigative and other officials; appointment


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## Skylar (Aug 7, 2018)

Tehon said:


> Can someone explain to me how the special counsel is constitutional? I seem to be having a difficult time understanding why it is so.
> 
> Article 2 Section 2 clearly states that the President has the power to appoint officers of the United States who's position shall be established by law.
> 
> ...



A former aide of Roger Stone made a similar argument in federal court. In a 93 page ruling the argument is refuted and deconstructed. It gives a superb overview of the regulations and case law surrounding the appointment of special counsels.

http://www.dcd.uscourts.gov/sites/dcd/files/REDACTED_In_re_GJ_18-gj-34_MEM_OP_20180802_FINAL.pdf


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## Lysistrata (Aug 7, 2018)

Who was Ken Starr and how much did he spend?

Independent probes of Clinton Administration cost nearly $80 million - April 1, 1999


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## Tehon (Aug 7, 2018)

Skylar said:


> Tehon said:
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> > Can someone explain to me how the special counsel is constitutional? I seem to be having a difficult time understanding why it is so.
> ...


That ruling is what led me to the answer.


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## Skylar (Aug 7, 2018)

Lysistrata said:


> Who was Ken Starr and how much did he spend?
> 
> Independent probes of Clinton Administration cost nearly $80 million - April 1, 1999



Impossible. Starr was a republican and a judicial appointee under Reagan. And republicans are firm that only someone of ones own party and political affiliation can investigate a president.

Thus, there is no way republicans ever would have made a republican the special counsel in the investigation of a democratic president.


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## Skylar (Aug 7, 2018)

Tehon said:


> Skylar said:
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It’s damn thorough.


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## Tehon (Aug 7, 2018)

Skylar said:


> Tehon said:
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There was another motion to dismiss filed for the same reason in a separate case. I imagine the results will be the same.


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## Skylar (Aug 7, 2018)

Tehon said:


> Skylar said:
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> > Tehon said:
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These are fairly awful legal challenges. Post-fact reasoning of twitter tends to splatter on the windshield of actual legal rulings.


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## Lysistrata (Aug 7, 2018)

Skylar said:


> Lysistrata said:
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> > Who was Ken Starr and how much did he spend?
> ...



I'm hoping that I'm detecting satire here.


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## Skylar (Aug 7, 2018)

Lysistrata said:


> Skylar said:
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> > Lysistrata said:
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Laughing! 

Oh, yeah.


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