Is the Special Counsel Statute Constitutional?

Tonight, I take up another constitutional question related to the Mueller investigation – whether or not the special counsel law is constitutional. But, first, an update:

Last time, I told you how a sitting President can’t be indicted, if one follows the long-standing practice outlined in two Justice Department memos. This week, according to Rudy Giuliani, Mueller’s team admitted to him they have no authority to indict a sitting President.  As a result, many have speculated that what Mueller is really up to is laying the groundwork for impeachment after the November elections.

On to tonight’s question: The Supreme Court upheld the constitutionality of the post-Watergate independent counsel statute under the Appointments Clause in a 1988 case, Morrison v. Olson.  Article II, Section 2 of the U.S. Constitution authorizes the President to nominate what are now called “principal” officers with the advice and consent of the Senate.  “Inferior” officers, on the other hand, are to be appointed by the President, the courts, or heads of federal departments. Congress can specify which in the enabling statute.

As odd as it may sound, there is no clear line between “principal” and “inferior” officers.  The framers did not leave a detailed set of instructions to determine which is which.  The Supreme Court held in the 1988 case that the independent counsel at issue was a lawfully appointed “inferior” officer based on four factors:

First, the independent counsel was subject to removal by a higher Executive Branch official.  Second, the statute only empowered the independent counsel to perform certain limited duties.  Third, the independent counsel’s reach only extended to certain federal officials suspected of certain serious crimes. And fourth, the independent counsel’s authority was temporary and to be terminated when the job was done.

This could be said to describe Special Counsel Robert Mueller, but it has been argued that his appointment is unconstitutional when you look at the same four factors examined in the 1988 case:  Mueller is going after a large number of people for numerous types of crimes – including many unrelated to Trump-Russia collusion.  This makes him analogous and in some ways more powerful than U.S. Attorneys, who are “principal” officers appointed with the advice and consent of the Senate.  While Mueller does have a boss, it is further argued that Rod Rosenstein cannot lawfully delegate his authority to Mueller to bring all kinds of indictments any more than President Trump could delegate his veto power to Rosenstein.

The argument is intriguing, but I doubt that any court would so hold.  It would have to be brought up in the posture of a case where an indictment was issued and I just can’t see a judge tossing an indictment on the grounds that Mueller was not constitutionally appointed.  There’s too much water under the bridge.  But I could be wrong and the issue could end up in the Supreme Court.  For now, I’m going with the odds that special counsel laws are generally upheld as constitutional.