On Mueller’s appointment

Steven G. Calabresi is the Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law. In an intriguing column for The Hill this week, Professor Calabresi gives a glimpse of “The mess Rod Rosenstein made.”

I was surprised by Rosenstein’s noncompliance with the Department of Justice’s own (very simple) regulations on the appointment of Special Counsel at the time he originally appointed Robert Mueller. Following Andrew McCarthy’s criticism of Rosenstein’s course of conduct, Rosenstein has tried to remedy the defects in Mueller’s appointment with a partially classified supplement and perhaps other measures. We remain in the dark.

Professor Calabresi argues that Mueller’s original appointment was not simply illegal. He argues that it was and is unconstitutional. His argument cuts to the core. In his Hill column Professor Calabresi concludes:

I am not aware of any prior deputy attorney general of the United States who has made as big and as consequential a mistake as has Rosenstein in his appointment of Robert Mueller. Not only has he violated Trump’s civil liberties and the rule of law by unconstitutionally giving Robert Mueller the powers of a principal officer without Mueller’s having been nominated by the president and confirmed by the Senate, he has undermined in the American people’s eyes the integrity of the Justice Department itself.

Professor Calabresi has set forth his analysis in the Opinion on the Constitutionality of Robert Mueller’s Appointment that he posted online at SSRN. I learned of Professor Calabresi’s Opinion via InstaPundit. Glenn Reynolds highlighted the abstract:

I argue in this Legal Opinion that Deputy Attorney General Rod Rosenstein’s appointment of Robert Mueller is unconstitutional both under the test for officer inferiority set forth in Justice Scalia’s opinion in Edmond v. United States, which is cited as good authority in Free Enterprise Fund v. PCAOB and also under the test for officer inferiority set forth in Chief Justice Rehnquist’s majority opinion in Morrison v. Olson. Under both tests, Mueller is acting as a principal officer even though he has not been nominated by the President and confirmed by the Senate. Mueller’s appointment is therefore unconstitutional.

Professor Calabresi has revised his Opinion and sent me the most recent version this morning. With his permission, I have uploaded the revised version to Scribd and embedded it below. With thanks to Professor Calabresi, I encourage Power Line readers who may be interested to take a look.

Opinion on the Constitutionality of Robert Mueller by Scott Johnson on Scribd

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