So Mueller's appointment wasn't even constitutional?

[onwebcam]

WOW Apparently special counsel must already be Presidential appointed and Senate confirmed. Meaning, Rosenstein (technically Sessions) doesn't have the power to crown just anyone to special counsel...

"The short answer to this as a statutory basis for constitutionalizing Mueller’s appointment as a special counsel is that Mueller was not actually appointed to assist U.S. attorneys or to prosecute Indians. There is, therefore, no statutory authority for the Mueller appointment.

According to 28 U.S.C. 519, the attorney general has the power to "supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543.” But this reference creates no new inferior officers just as 28 U.S.C. 543 creates no new inferior officers. Both clauses refer to attorneys already appointed by law who are assisting U.S. attorneys, which is not what Robert Mueller is doing.

The Appointments Clause creates a default rule that all officers of the United States are principal officers who must be nominated by the president and confirmed by the Senate. It takes affirmative action by passing a statute for Congress to vest in the attorney general the power to appoint an inferior officer to be a special counsel. Since Congress has never passed such a statute, Robert Mueller is not, and cannot be, an inferior officer."
http://thehill.com/opinion/judiciary...pecial-counsel

[sarettah]

A good rebuttal to the article you posted is at:
Legal Skills Prof Blog

In there they reference Morrison v Olson

https://supreme.justia.com/cases/fed.../654/case.html

In that case it was ruled that:

2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 487 U. S. 670-677.

(a) Appellant is an "inferior" officer for purposes of the Clause, which -- after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent -- states that "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."

So, it would appear to me that Mueller's appointment is quite constitutional.

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[onwebcam]

Originally Posted by sarettah

A good rebuttal to the article you posted is at:
Legal Skills Prof Blog

In there they reference Morrison v Olson

https://supreme.justia.com/cases/fed.../654/case.html

In that case it was ruled that:



So, it would appear to me that Mueller's appointment is quite constitutional.

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You didn't read what you quoted apparently.. It pretty much states the exact same thing as what I posted..

Congress didn't appoint him

And they haven't made it into law that someone other than themselves or the President can.. They did have a law up until 1999 but not since then. That all is addressed in my link.

"Robert Mueller is not an inferior officer of the United States because Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrong-doing by the president of the United States or other high level government officials.

Attorney General Janet Reno adopted a Department of Justice regulation to this effect in 1999, after the Ethics in Government Act sunsetted out of existence, which purported to create special counsels to investigate high-level or presidential wrongdoing, but she had no statutory authority to appoint Special Counsels to be inferior officers. Reno’s regulation, “Grounds for appointing a Special Counsel", was blatantly unconstitutional.



Some might defend Reno’s regulation by pointing to 28 U.S.C. Section 515(a), which provides that:

“The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings ... whether or not he is a resident of the district in which the proceeding is brought.”

This provision does not, however, authorize the creation of new inferior officer special counsels like Robert Mueller. "


Lisa Page was "Special Counsel" to the FBI... There's a HUGE difference in her duties as special counsel as opposed to Mueller's.

Edit: Also just noticed that case was from 1988..

[sarettah]

Originally Posted by onwebcam

"Robert Mueller is not an inferior officer of the United States because Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrong-doing by the president of the United States or other high level government officials.

And you did not read what I quoted.

The rules for a special counsel is covered under US Code Chapter 40. (The US Code is the set of Laws passed by Congress and the rules established to enforce them) And the US Code clearly gives the Attorney General the role of appointing Special Counsel, in particular an Outside counsel (outside counsel means someone NOT employed by the US attorneys office as an Attorney)

28 CFR Part 600 (which is referenced iin the article I quoted) covers the powers of a special counsel. 600.1 Grounds for appointing a special counsel states:

§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

So, in contrast to what you stated, Congress has established that the Attorney General Can appoint Special Counsel and that that counsel should be from OUTSIDE the US Attorneys office.

Furthermore, since the Attorney General (or in the case of recusal the next in line) has hire and fire control of the special counsel and the Attorney General defines the scope of the investigation the Special Counsel is by all definitions an INFERIOR officer and NOT subject to the Appointments clause.

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[onwebcam]

Originally Posted by sarettah

And you did not read what I quoted.

The rules for a special counsel is covered under US Code Chapter 40. (The US Code is the set of Laws passed by Congress and the rules established to enforce them) And the US Code clearly gives the Attorney General the role of appointing Special Counsel, in particular an Outside counsel (outside counsel means someone NOT employed by the US attorneys office as an Attorney)

28 CFR Part 600 (which is referenced iin the article I quoted) covers the powers of a special counsel. 600.1 Grounds for appointing a special counsel states:



So, in contrast to what you stated, Congress has established that the Attorney General Can appoint Special Counsel and that that counsel should be from OUTSIDE the US Attorneys office.

Furthermore, since the Attorney General (or in the case of recusal the next in line) has hire and fire control of the special counsel and the Attorney General defines the scope of the investigation the Special Counsel is by all definitions an INFERIOR officer and NOT subject to the Appointments clause.

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I was actually just reading USC 28 594 and 595 and then read your comment.. Then scanned your source. So now we are on "defined scope.." And even your source agrees that Mueller is well outside of his defined scope.. So then we get into Rosenstein redefining his scope later on... And leaving his scope pretty much open ended... Which kinda kicks him out of the "defined scope" argument doesn't it?

[Rochard]

We should have an investigation.

Then we should have an investigation to see if the investigators were politically biased.

[onwebcam]

Originally Posted by Rochard

We should have an investigation.

Then we should have an investigation to see if the investigators were politically biased.

Considering 4 people have been removed from his team after being exposed for being politically biased I think that one is a given..

[onwebcam]

Originally Posted by onwebcam

I was actually just reading USC 28 594 and 595 and then read your comment.. Then scanned your source. So now we are on "defined scope.." And even your source agrees that Mueller is well outside of his defined scope.. So then we get into Rosenstein redefining his scope later on... And leaving his scope pretty much open ended... Which kinda kicks him out of the "defined scope" argument doesn't it?

Lawyers representing Russian Co's filed for dismissal based on the same premise. Lot's of case law included in filing. Apparently Manafort's lawyers are challenging as well. Supposedly Mueller admitted he indicted too early (trying to manipulate the news cycle) because he hadn't translated the evidence to English yet.

https://www.politico.com/f/?id=00000...d-3c7b8ce20003

[onwebcam]

Originally Posted by onwebcam

Lawyers representing Russian Co's filed for dismissal based on the same premise. Lot's of case law included in filing. Apparently Manafort's lawyers are challenging as well. Supposedly Mueller admitted he indicted too early (trying to manipulate the news cycle) because he hadn't translated the evidence to English yet.

https://www.politico.com/f/?id=00000...d-3c7b8ce20003

They made a superb argument... Mueller is done...