No, the Mueller Investigation Is Not Unconstitutional

Andy Koppelman and I explain why in The American Prospect.  Here is the gist:

Steven Calabresi is chairman of the board of the Federalist Society and the Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law—and, we should add, a friend and colleague of ours.He recently published an op-ed in The Hill, purporting to explain why President Trump has behaved lawfully by demanding a Justice Department investigation of so-called FBI spying, and why Mueller’s own investigation is “unconstitutional.” He is half right, but it is the lesser half.

Calabresi’s second point, however, is just wrong. He argues that Mueller’s investigation is unconstitutional because he was “never nominated by the president and confirmed by the Senate.” He reaches this conclusion by claiming that Mueller is “acting like a U.S. attorney” rather than an assistant and is therefore “a principal officer” who must be nominated by the president and confirmed by the Senate. But “acting like” a principal officer has no constitutional meaning and, in any case, Calabresi’s only support for this position is that Mueller “is more powerful and famous than are any of the 96 U.S. attorneys.” The factual claim regarding power is dubious, especially in light of Mueller’s referral of the Cohen investigation to the Southern District of New York. Moreover, there is no requirement that prosecutors who conduct national investigations be less “powerful” than individual U.S. attorneys. Fame, needless to say, is constitutionally irrelevant.

You can read the entire essay here.

Comments

[Scott Fruehwald]

Steve I agree, and I posted my analysis on SSRN at https://ssrn.com/abstract=3185031. I apply the Edmond/Morrison test in detail.

[Deep State Special Legal Counsel]

Rudy Giuliani is doing what any decent criminal defense lawyer does every single day: Makes a record by filing motions. We file Motions to Suppress evidence, Statements and challenge the application of statutes. We argue that the copper's gathering and obtaining evidence was unconstitutional. Mueller and the Justice Department are just fancier "beat cops" that we see everyday in local courts. Giuliani is making the same argument, just at a higher level. Doesn't mean he is correct.