President Trump's Survival May Turn On Mr. Mueller's Unconstitutionality

08/01/2017 06:07 pm ET Updated Aug 03, 2017
United States ambassador (ret); chair, constitutional law and human rights, Pepperdine University; former head of the office
United States ambassador (ret); chair, constitutional law and human rights, Pepperdine University; former head of the office of legal counsel, United States Department of Justice, Reagan and Bush 1 administrations.

Today’s Washington Post report, that Pres. Trump personally dictated the response given to the New York Times concerning the scope and nature of the summer 2016 meeting with Donald Junior and, after that initial response, proved to be a growing list of Russian influencers, is disturbing news to say the least. If accurate, this story is coming extremely close to supplying everything that Robert Mueller would need to establish corrupt intent on the part of the president and others in obstructing the inquiry into the so-called Russian collusion question, which the president has characterized as entirely fabricated or a “witch hunt.”

Last week, the president was mounting a two-pronged response beyond the “witch hunt” characterization and it was a continuing complaint that Attorney General Sessions unnecessarily recused himself and speculation that the president might be contemplating granting himself his own pardon. As I outlined in a Los Angeles Times op-ed of late last week, neither of Pres. Trump’s efforts were likely to succeed and for good reason. His argument against recusal could not plausibly be that ethics did not require it, and so it becomes reasonable to suppose that the president was mistaking the Atty. Gen. for a personal, partisan advocate who in some way might steer the investigation away from the Oval Office. Obviously, the long history of departmental regulation of recusal is meant to avoid just that: namely, personally interested parties subjectively favoring themselves over the objective findings of an investigation. So too, as a matter of history and legal determination, the prospect for self-pardon lacks all credibility.

Rejecting as unmerited President Trump’s complaints against Sessions and embarrassing interpretations of the pardon power is not a constitutional crisis. Indeed, it’s all in a day’s work for the rule of law. That is not to say that the dots being connected suggesting not just a campaign, but its candidate, knowingly interacting with Russian nationals and Russian sources to disadvantage his opponent can be simply dismissed as misbegotten beliefs about women with a stake in Salem, Massachusetts. If the president is implicated as a beneficiary of the Russian hack or theft, is it true that there would be no reasonable escape from an impeachment inquiry in the House of Representatives teeing up removal following a Senate trial?

There is an alternative path, and that is, the rule of law must be applied fairly to both sides.

Applying the rule of law in behalf of the president, his best path to forestall, maybe even derail the impeachment band-wagon is not to discredit Mr. Mueller’s well-known integrity, or grasp some exotic idea of immunity, but rather to inquire where the Supreme Court itself would ultimately inquire and that is whether or not Mr. Mueller himself was properly appointed as special counsel.

Normally, questions related to the integrity of the electoral process would be handled by the Department of Justice. What is the justification for the Department of Justice handing this investigation over to a special counsel? And is that basis legally sufficient?

First, it should be noted that the Supreme Court has not adjudicated the constitutionality of the existing special counsel regulations under which Mr. Mueller was appointed.

The Supreme Court in Morrison v. Olson over one dissent (Scalia) previously upheld the now expired independent counsel law (7-1; Justice Kennedy had newly joined the Court and did not participate). This precedent does not validate the Mueller appointment because the current special counsel regulations do not track the independent counsel law, and thus, the regulations can be argued to lack essential checks on the possible abuse of prosecutorial authority such as the expired law’s preliminary investigation determination of “credible and specific evidence” and “reasonable grounds” to go forward.

Moreover, there may have been noncompliance with existing special counsel regulations

It is not clear that the current DOJ regulations were followed in the Mueller appointment – however insufficient they might be under the Morrison standard or Justice Scalia’s better view in Morrison. For example, in place of the preliminary investigation undertaken pursuant to the expired statute, there is little indication that there was an examination or credible or formal finding of why the special counsel would constitute one of the “extraordinary circumstances” in which the entire Department of Justice has a conflict.

The actual special counsel appointment seems to be premised upon an ethically questionable media leak by a now fired FBI director, James Comey, who arguably prejudged the bad intent of the president. Unlike that which was required under the now expired law, there is no discussion of specific and credible evidence; there’s no report to a court of reasonable grounds to proceed; there’s no judicial participation in the naming of the special counsel.

Moreover, there seems to be a conflation of the question of whether or not a special counsel is required and the separate issue of the appropriateness of the Atty. Gen.’s recusal. The existing regulations make it clear that if one person, such as the Atty. Gen., has a particular conflict that does not mean that the department itself, without the Atty. Gen.’s particular participation, cannot conduct the investigation. Indeed, given the significance of the vesting of the entire executive power – that is the law enforcement power – in the president, it is reasonable to suppose that Justice Scalia would have found no basis for a total department-wide conflict and need for a special counsel.

By separating the special counsel and recusal issues one ultimately comes to a more important question in terms of the constitutionality of Mr. Mueller’s appointment. Specifically, was the appointment of Mr. Mueller the appointment of a principal or inferior officer?

DOJ regulations provide for a special counsel only where it is “warranted,” and since it is a claim of the existence of a conflict of interest for the department, a special counsel is said to be needed only in “extraordinary circumstances.” Given the competence of the career lawyers in the Department of Justice, and the stronger likelihood that drawing upon those talents would present less partisan conflict or insinuation, it is not at all clear that such extraordinary circumstance justifies Mr. Mueller’s appointment.

Not only is there no showing of a conflict of interest for the entire department, it is not at all clear from the Deputy Attorney General’s statement that this inquiry consistent with departmental policy and regulation was even inquired into at the time of Mr. Mueller’s appointment. Neither is there a showing of extraordinary circumstance. There is no formal determination that the appointment of a special counsel would be in the public interest; there is no evidence of the AG or DAG conducting an initial investigation to “better inform” the special counsel appointment decision. To the contrary, as indicated above, relying upon the experience of legal professionals who have served the department across many partisan lines, the essential facts suggest the public interest would be better served by keeping the matter within the normal process of the department and having only selective recusals where needed.

In brief, Mr. Mueller was appointed neither with the specific and credible evidence required under the expired independent counsel law nor by a determination under the existing DOJ regulations that this was truly one of the extraordinary circumstances where there was a department-wide conflict.

Was Mr. Mueller properly appointed as a matter of constitutional jurisprudence?

Another way of addressing the propriety of Mr. Mueller’s appointment is to focus on the constitutional questions presented by that appointment. Specifically, to make an inquiry into whether Mr. Mueller was properly appointed as an inferior rather than a principal officer?

It is my assessment that under the late Justice Scalia’s reasoning and subsequent cases which scholars and judges have expressed greater confidence, Mr. Mueller was not properly appointed as an inferior officer?

The Supreme Court has indicated that there is a difference between officers and employees. Officers are invested “with significant governmental authority.” According to an OLC memorandum by acting Assistant Attorney General Stephen Bradbury dated April 16, 2007 “an individual who will occupy a position to which has been delegated by legal authority a portion of the sovereign powers of the federal government, and which is continuing, must be appointed pursuant to the appointments clause. Conversely, a position that does not satisfy one of these two elements need not be filled pursuant to that clause.”

There’s no question but that Mr. Mueller is an officer to whom the appointments clause applies. The appointments clause however divides officers into two further categories – principal and inferior officers. Inferior officers can be appointed by courts of law, the president alone, or the head of a department. By contrast, principal officers are subject to confirmation of the Senate following presidential nomination. It must be admitted that in the judgment of the majority in the Morrison case, it was accepted that the statutory independent counsel was an inferior officer. That assessment however was almost immediately assailed as indulging an artificially narrow conception of the authority of the independent counsel in likely tenure, jurisdiction, and effective supervision. Justice Scalia thought the very judicial inquiry being made was unauthorized by the Constitution since the entire executive power was vested in the president based upon the text of the Constitution. Moreover, Justice Scalia, who had himself served as head of the office of legal counsel at one time, viewed the practical realities. It was nonsense to suggest that someone appointed with only a single high profile target was exercising a lesser power than that of a US attorney with thousands of cases that must be balanced against limited resources. Certainly, it was the bipartisan view of Congress in allowing the independent counsel law to expire that the disruptive effect of an independent counsel had been anything but modest.

In Morrison, Justice Scalia suggested that an independent counsel be understood as a principal officer because that coincided better with the understanding that the appointments clause is among the most significant structural safeguards that are designed to preserve political accountability relative to important government assignments.

It was clear to Justice Scalia that the independent counsel statute was fatally flawed under constitutional separation of powers requirements because it denied the president exclusive control over the executive activity of enforcing our nation’s criminal laws. Justice Scalia was also a realist, however, and he well understood why a Congress might be tempted to rush the appointment of an independent or special counsel: namely, it has the appearance of relieving Congress of some of its constitutionally assigned work – specifically, it would seem to permit Congress the ability to work around matters that would otherwise need to be handled through an uncomfortable impeachment proceeding. Justice Scalia thought the Congress was fooling itself, and at a minimum, doing serious damage to the ability to maintain political accountability over the president and the executive branch. In this regard, Justice Scalia said that Congress could not avoid accepting the political damage resulting from the commencement of impeachment proceedings against the president on trivial grounds by simply triggering a debilitating criminal investigation of the chief executive under the independent counsel law. Morrison, 487 US at 713.

Subsequent cases establish that a special counsel like Mr. Mueller is not properly viewed as an inferior officer because Mr. Mueller is not subject to the “supervision” or “direction and control” necessary to be an inferior officer. See, e.g., Edmond v. U.S., 520 U.S. 651 (1997). In the rapid dynamic of the appointment of Mr. Mueller, it is not at all clear who, if anyone, is supervising Mr. Mueller. We know it is not the AG, but contrary to unexamined assumption, it may not be the Deputy AG either because the DAG has “anticipated” his own recusal for being a proximate cause of the Comey firing. But this speculation only introduces its own confusions – can recusal be “anticipated”? Isn’t one either recused or not? Indeed, if the Sessions principle is followed, the DAG is already recused. How could he not be when the facts of his participation in decisions under review are not going to change? So again, who is supervising Mr. Mueller? When departmental regulations themselves specified that: “the special counsel shall not be subject to the day to day supervision of any official in the Department.”

But isn’t Mr. Mueller removable by the president?

Perhaps, under the strongest version of the unitary executive, the president must retain at all times the ability to remove any person exercising any portion of executive authority. This strong version of the unitary executive however has not been fully articulated by the Court, and indeed, the existence of independent agencies and the premise of the unanimous decision in U.S. v. Nixon are to the contrary.

Putting aside the complicated questions of executive power, Mr. Mueller by the terms of the departmental regulations may be removed for good cause, but not by the President, but only by the “personal action” of the Attorney General. Even a qualified authority to remove another officer is admittedly some evidence that the person subject to removal is subordinate or inferior. Yet, Supreme Court precedent suggests that hypothetical remove ability is not the sum and substance as to whether or not an officer is found to be a principal or inferior officer. Is likely here that the actual practice of Mr. Mueller will need to be examined before he can be definitively categorized as either an inferior or principal officer. That said, the extent to which Congress and other components of the executive department have deferred to Mr. Mueller’s authority without question or serious examination or oversight would suggest that he is a principal officer was not been properly confirmed by the Senate of the United States. An officer who is not been properly appointed has no authority to receive testimony or documents in the name of the United States, and one would think that the president’s lawyers would pursue the bona fides of his appointment prior to any compliance with such demands.

Upside down criminal law

Beyond the intricacies of the difference between inferior and principal officers, there is another reason to find the department’s special counsel regulations constitutionally questionable. Justice Scalia found the very theory of an independent counsel to rest upon inverted criminal practice. In the world of due process, it’s crime first; guilty person identification and trial second. It is arguably the flip for President Trump who finds himself caught within the net of the special counsel. In the present matter, despite his efforts to receive a clear understanding of his investigative status from the former FBI director, the President is for all practical matters being investigated. Whatever else being the subject of an investigation may mean, the president understands the practical realities that a colloquial understanding of collusion merely hides for the moment suppositions of cover up, obstruction, and associated perjury, in addition to whatever aspects of title 18 may be implicated by giving a foreign adversary aid and comfort.

Is it time for the vice president to act?

To briefly digress, the presidential preoccupation has meant apparently his own center ring orchestration of his son’s public response to the Trump tower Russian meeting in summer 2016 in which it is alleged that the Russians were offering negative information on Mrs. Clinton and that offer was received with some ready appreciation and gratitude on the part of the Trump representatives. Moreover, as the Washington Post has reported this first day of August 2017 today, that orchestration took place in the same timeframe as the G 20 meeting illustrating the tendency of this investigation to displace even the most rudimentary study and participation by Pres. Trump in international matters that may be essential to the nation’s security. (This is why the 25th amendment necessitates a vice presidential inquiry into capability and the possible need for a temporary leave of absence. As I’ve explained elsewhere in an op-ed in the San Francisco Chronicle, as well as in HuffPost, in the usual case a majority of the cabinet must concur for the vice president to be named acting president for the appropriate period of time. However, with great foresight, the drafters of the 25th amendment provided for an alternative entity to be given the role of a concurrent advisor to the vice president in substitution for the cabinet. As I have argued elsewhere, there is no greater credibility to be found than in a panel consisting of the former living presidents of the United States).

Has a sitting president been effectively indicted by the operation of the special counsel regulations as applied Pres. Trump?

There is little question in the public mind, here and abroad, that the President has been singled out, and that the nation is waiting upon perhaps insufficiently supervised decisions of a special counsel to determine if some criminal violation can be attributed to him. When the general upside down nature of special counsel regulations and its inversion of criminal procedure is comprehended together with the insufficient determination of whether a special counsel was justified at all and both factors are further combined with the confusions of recusal and Mr. Comey’s rather unfortunate tendency to evaluate presidential conversations in the worst light, there is a reasonable prospect that the Court would ultimately determine that constitutional history and text were being disregarded and that a sitting president had been effectively indicted. This is not intended to disparage the service that Mr. Comey rendered to the United States. Nevertheless, the former director’s testimony before Congress is more than a little inclined toward finding a bad or corrupt intent on the part of Pres. Trump. If director Comey suspected that the president’s intentions were corrupt would it have not been more ethically appropriate to say that out loud to the President’s face, and not run off with a university acquaintance who was willing to act surreptitiously as a scold upon those unproved assumptions of corrupt motive?

Final thoughts

To conclude, it is worth remembering that until now a president has never been held to be subject to indictment while in office. And because that is so, it is also worth keeping in mind that if we disable this president by unlawful, unconstitutional means we have done more than meddle with a single election.

The separation of powers doctrine was designed to protect the freedom of individual American citizens by making sure that those enforcing the law would be accountable to the president and that the president would be accountable to the American people through the political process. It is that political process that is so envied by failed, authoritarian states such as Russia that makes it more inclined to destroy it than to acknowledge the freedom of their own people to pursue it.

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