A Northwestern University law professor who clerked for Supreme Court Justice Antonin Scalia is causing a stir as he makes the rounds of national media and lays out his case that special counsel Robert Mueller’s entire operation is unconstitutional.
Steven Calabresi, the Clayton J. and Henry R. Barber professor of law and a co-founder of the Federalist Society, reiterated that view Friday on a conference call with reporters and legal professionals. He said the appointment of Mueller violates the appointments clause of the Constitution.
The consequences of that conclusion, should it prove accurate, could be sweeping for Mueller’s open-ended investigation into allegations of Russian interference in the 2016 presidential election and possible collusion with President Donald Trump’s campaign.
“All actions taken by Mueller since his appointment on May 17, 2017, are, therefore, null and void,” he said.
That would include all the indictments Mueller has brought, the plea bargains he has negotiated, the controversial searches his team has conducted, and the referral he made of records seized from the home and offices of Trump lawyer Michael Cohen.
Calabresi predicted the courts would throw out any evidence given to the U.S. attorney’s office in Manhattan as the “fruit of a poisonous tree.”
Whether any of that will actually come to pass is hard to predict. It would require a target of the Mueller investigation to challenge the constitutionality of his appointment and then the courts — and most likely the Supreme Court — would have to adopt Calabresi’s argument.
Several factors weigh against that, most prominently the extreme reluctance of federal courts to issue decisions that would be as disruptive as one that would declare Mueller’s appointment unconstitutional and invalidate every action his team has taken over the past year.
And there is a Supreme Court precedent upholding the constitutionality of the law allowing for the appointment of a special prosecutor by a three-judge panel. That law, which eventually lapsed because Congress declined to renew it, was more suspect than the current statute because it involved questions of separation of powers — could another branch appoint an official of the executive branch who is completely independent of it?
The Supreme Court answered that question in 1988, with a 7-1 ruling in a case involving a special prosecutor who investigated possible false statements to Congress by Theodore Olson, who at the time was an official in the Environmental Protection Agency. (Olson later went on to serve as solicitor general in the George W. Bush administration, representing the federal government in matters before the Supreme Court.)
Calabresi sees six votes on high court. But Calabresi — who clerked for Scalia when the late justice wrote the dissent in that case — said he believes there are five, and possibly six, votes on the high court to strike down Mueller’s appointment.
Under interpretation of the appointments clause, a “principal officer” must be nominated by the president and confirmed by the Senate. If he is an inferior officer, he can be appointed by another government official without input from the president or confirmation by the Senate. (Continue reading here.)
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