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U.S. Constitution
See other U.S. Constitution Articles

Title: The appointment of Robert Mueller violates the Appointments Clause of the Constitution... ·
Source: [None]
URL Source: [None]
Published: May 22, 2018
Author: . MARK LEVIN·
Post Date: 2018-05-22 10:12:49 by tpaine
Keywords: None
Views: 323
Comments: 37

The appointment of Robert Mueller violates the Appointments Clause of the Constitution...

MARK LEVIN·MONDAY, MAY 21, 2018

The appointment of Robert Mueller violates the Appointments Clause of the Constitution. Mueller is not an inferior appointee, but a principal appointee as understood under our constitution. His powers are more akin to an United States attorney, not an assistant United States attorney.

Moreover, his boss, Deputy Attorney General Rod Rosenstein, treats him as a principal officer -- that is, Mueller is mostly free to conduct his investigation with few limits or restraints. The parameters of his appointment were extraordinarily broad in the first instance, and have only expanded since then.

Indeed, Mueller is more powerful than most United States attorneys, all of whom were nominated by the President and confirmed by the Senate as principal officers. Furthermore, Rosenstein mostly rubber stamps Mueller's decisions and is not involved in the regular management and oversight of Mueller to any significant extent, underscoring Mueller's role not as an inferior officer but a principal officer. As such, Mueller's appointment violates the Appointments Clause.

Mueller would've had to be nominated for Senate confirmation like any other principal officer in the Executive Branch. Rosenstein did not have the constitutional power to appoint a principal officer on his own anymore than the President himself does. To do otherwise is to defy the procedure established by the Framers for making such consequential executive appointments. It follows, then, that every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void. Every defendant, suspect, witness, etc., in this matter should challenge the Mueller appointment as a violation of the Appointments Clause.

H/T to Northwestern Law School Professor Steven Calabresi, who raised many of these points, and more, with me and a few other friends and colleagues over the weekend, in a well-researched opinion he shared with us. He deserves great credit

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#1. To: tpaine (#0)

I agree with Professor Calabresi and Mr. Levin on this matter.

Vicomte13  posted on  2018-05-22   10:41:40 ET  Reply   Trace   Private Reply  


#2. To: Vicomte13, Y'ALL (#1)

It follows, then, that every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void. Every defendant, suspect, witness, etc., in this matter should challenge the Mueller appointment as a violation of the Appointments Clause.

I agree with Professor Calabresi and Mr. Levin on this matter. -Vic

Sounds to me that if everyone from now on, - challenged Mueller, as above, --- they could end this witch hunt...

Or, would it have to go to the Supreme Court first?

tpaine  posted on  2018-05-22   13:21:48 ET  Reply   Trace   Private Reply  


#3. To: tpaine (#2)

Or, would it have to go to the Supreme Court first?

I think it would depend on the charges and it would have to be handled on a case by case basis.

redleghunter  posted on  2018-05-22   13:35:07 ET  Reply   Trace   Private Reply  


#4. To: tpaine (#0)

Special Counsel Appointment Authority

Art. 2, Sec. 2, Cl. 2

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

https://www.law.cornell.edu/cfr/text/28/600.1

28 CFR 600.1 - Grounds for appointing a Special Counsel.

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

According to law, the Special Counsel is appointed by the Attorney General or Acting Attorney General.

- - - - - - - - - - - - - - - - - - - -

An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.

United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867)

https://www.scribd.com/document/379904809/United-States-v-Hartwell-73-US-6-Wall-385-1867

- - - - - - - - - - - - - - - - - - - -

United States v. Hartwell (6 Wall. 385) is not, as supposed, in conflict with these views. It is clearly stated and relied on in the opinion that Hartwell's appointment was approved by the Assistant Secretary of the Treasury as acting head of that department, and he was, therefore, an officer of the United States.

If we look to the nature of defendant's employment, we think it equally clear that he is not an officer. In that case the court said, the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination. He may make fifty of these examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions of which we are not advised.

No regular appropriation is made to pay his compensation, which is two dollars for every certificate of examination, but it is paid out of money appropriated for paying pensions in his district, under regulations to be prescribed by the commissioner. He is but an agent of the commissioner, appointed by him, and removable by him at his pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or refusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal, he would have as much claim to be an officer of the United States as the surgeons appointed under this statute.

We answer that the defendant is not an officer of the United States, and that judgment on the demurrer must be entered in his favor. Let it be so certified to the Circuit Court.

United States v. Germaine, 99 U.S. 508, 511-12 (1878)

https://www.scribd.com/document/379901246/United-States-v-Germaine-99-US-508-1878

- - - - - - - - - - - - - - - - - - - -

What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, has 'been very fully considered by this court in United States v. Gernaine, 99 U. S. 508. In that. case, it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law, or the head of a Department; and the heads of the Departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.

U.S. v. Mouat, 124 U.S. 303, 307 (1888)

https://www.scribd.com/document/379901294/United-States-v-Mouat-124-US-303-1888

nolu chan  posted on  2018-05-22   15:58:39 ET  Reply   Trace   Private Reply  


#5. To: tpaine (#2)

Sounds to me that if everyone from now on, - challenged Mueller, as above, --- they could end this witch hunt...

Or, would it have to go to the Supreme Court first?

Probably the latter.

Congress could cut off his funding and salary, but that would still be resolved in court.

Anything that purports to stop Mueller will be challenged in court. So yeah, ultimately the Supreme Court has to decide the case. Maybe they'll decide it by NOT granting certiorari, and allowing an appellate court ruling to stand. But that will simply mean they have decided to leave the final ruling intact.

Vicomte13  posted on  2018-05-22   16:13:47 ET  Reply   Trace   Private Reply  


#6. To: nolu chan (#4)

One argument is what you have posted - that the statute defines who has the power to appoint, and that the case law says that the appointee is not an officer.

The counterargument is that the appointment IN THIS CASE granted Mueller with authority that exceeded the power of the Attorney-General himself - an open-ended prosecution without a criminal charge basis, a never-ending fishing expedition with an unlimited budget. That's not a "Special Counsel", though called one, it's a Grand Inquistor. Sessions has no power under the Special Counsel clause to appoint a Grand Inquisitor, and neither does his deputy.

In your case law, you would have to provide an alternate set of facts - somebody called a "paymaster's clerk" by title, whose job scope is in fact spelled out in his engagement letter as commanding a ship of the US Navy. In that case, though he be titled a "paymaster's clerk", the court would not disregard the fact that he was IN FACT a naval officer, exercising the office of a naval officer, but without having been appointed by the President.

That is what is at issue here, in my view anyway. The Atty General or Acting Attorney General can appoint a Special Counsel, but they cannot appoint a special counsel and grant him greater power than they have to confer. Merely entitling a man "Special Counsel" does not, by virtue of the title, grant that man the power to behave extraconstitutionally, and the open-ended, undirected, unsupervised, unaccountable Grand Inquisitor role that Mueller has arrogated unto himself, unchecked by Rosenstein, is not a "Special Counsel" in anything but name, and vastly exceeds the scope of what a "Special Counsel" may be, or that an Attorney General may appoint.

That is the side of the argument I agree with.

Now what is required is for some legal activist group to bring that case to court in a District heavy with Republicans and Trump appointees, hoping to get the right judge to rule in their favor, and thus get an injuction against Mueller, which will then work its way up the appeals process.

Vicomte13  posted on  2018-05-22   16:39:00 ET  Reply   Trace   Private Reply  


#7. To: Vicomte13 (#6)

In your case law, you would have to provide an alternate set of facts - somebody called a "paymaster's clerk" by title, whose job scope is in fact spelled out in his engagement letter as commanding a ship of the US Navy.

No. It appears that all that is needed is to show the appointed position is temporary, of limited duration. That seems applicable to any appointed position, regardless of title.

United States v. Germaine, 99 U.S. 508, 511-12 (1878), citing United States v. Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867)

It is clearly stated and relied on in the opinion that Hartwell's appointment was approved by the Assistant Secretary of the Treasury as acting head of that department, and he was, therefore, an officer of the United States.

Appointed by a Department Head. Check.

If we look to the nature of defendant's employment, we think it equally clear that he is not an officer. In that case the court said, the term embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary. In the case before us, the duties are not continuing and permanent, and they are occasional and intermittent. The surgeon is only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination. He may make fifty of these examinations in a year, or none. He is required to keep no place of business for the public use. He gives no bond and takes no oath, unless by some order of the Commissioner of Pensions of which we are not advised.

The appointment is temporary, of limited duration. Not an officer of the United States.

No regular appropriation is made to pay his compensation, which is two dollars for every certificate of examination, but it is paid out of money appropriated for paying pensions in his district, under regulations to be prescribed by the commissioner. He is but an agent of the commissioner, appointed by him, and removable by him at his pleasure, to procure information needed to aid in the performance of his own official duties.

nolu chan  posted on  2018-05-22   17:35:54 ET  Reply   Trace   Private Reply  


#8. To: nolu chan (#7)

I see all of that.

The part you are missing is the marrow of it. The Attorney General has no power to appoint anybody, officer or not, to exercise powers that exceed those that the Attorney-General can grant.

Mueller appointment fits the definition of a Special Prosecutor in the sense that he was appointed by the acting Atty-General. It is of an open-ended duration, which raises a question mark, a "for the duration" appointment.

But the crucial thing is that he has been appointed to do something that the Attorney General himself cannot do: an open-ended, unlimited, unsupervised search into anybody and anything, wherever he chooses to go, without a criminal statute as the basis, without probable cause, and with no stated duration.

The Constitution does not empower the Attorney General, or the President for that matter, to appoint a Grand-Inquisitor to investigate whatever the hell he wants, for as long as he wants to, with as much resources as he thinks he needs.

No past Special Counsel has gone this far on this little.

Now, of course the Mueller side and the Democrats will argue that all that had to be done is appoint a special counsel, call him that, and it's good.

In the past that has worked. But nobody in the past has behaved as egregiously as Mueller has, with as little basis.

So this may get tested in court. When it is, the outcome will be dependent, I believe, on the political affiliation of the judge and the question of who appointed him or her. A Trump appointee will find for Trump. A Democrat appointee will find for Mueller. Any other Republican appointee will be a jump ball.

It's a great question: what are the limits of subordinate power. I would say that Mueller has exceeded them. I would have also said that Ken Starr did, but nobody raised the issue then.

Vicomte13  posted on  2018-05-22   18:00:01 ET  Reply   Trace   Private Reply  


#9. To: Vicomte13 (#8)

The part you are missing is the marrow of it. The Attorney General has no power to appoint anybody, officer or not, to exercise powers that exceed those that the Attorney-General can grant.

That may be a valid point that the given authority is unlawful, but I don't quite see how that makes the appointment unconstitutional. Mark Levin argues the appointment is unconstitutional under the appointments clause.

So this may get tested in court. When it is, the outcome will be dependent, I believe, on the political affiliation of the judge and the question of who appointed him or her. A Trump appointee will find for Trump. A Democrat appointee will find for Mueller. Any other Republican appointee will be a jump ball.

It's a great question: what are the limits of subordinate power. I would say that Mueller has exceeded them. I would have also said that Ken Starr did, but nobody raised the issue then.

I doubt anyone with standing is interested in litigating this point. Trump wants Mueller to continue flailing until the evidence of corruption becomes so overwhelming that Mueller and Rosenstein are being perp walked out of their offices. If Trump really wanted Mueller out, he could just have him fired.

I agree that Mueller and Starr exceeded the proper authority of their investigations.

nolu chan  posted on  2018-05-23   0:25:46 ET  Reply   Trace   Private Reply  


#10. To: Vicomte13 (#9)

http://www.thegatewaypundit.com/2018/05/levin-drops-a-moab-new-revelation-muellers-lawyers-obtained-special-status-show-probe-is-unconstitutional-under-article-ii-video/

LEVIN DROPS A MOAB: New Revelation Mueller’s Lawyers Obtained ‘Special Status’ Show Probe is Unconstitutional Under Article II (VIDEO)

[excerpt]

Levin said the attorneys in the case before an Alexandria, Va. federal judge are simultaneously considered “Special Assistant U.S. Attorneys.”

He said that therefore, their direct supervisor — Mueller — should be lawfully considered a “roving” U.S. Attorney.

He said the Constitution designates the president as the person who must nominate all “principal officers” — including U.S. attorneys and cabinet members.

But, Mueller was appointed by Deputy Attorney General Rod Rosenstein and was not confirmed by the Senate, as anyone working as a U.S. attorney should be by law, according to Levin.

Levin's constitutional argument hinges on whether Mueller had to be appointed by the President and confirmed by the Senate.

That some subordinates have been designated as U.S. Attorneys provides slim basis to lawfully consider Mueller a "roving" U.S. Attorney. If Mueller has not been officially designated a U.S. Attorney, he ain't one. It may be that subordinates are improperly designated SAUSA.

The point you made may well be valid, but Levin is off on another tangent altogether.

nolu chan  posted on  2018-05-23   1:04:30 ET  Reply   Trace   Private Reply  


#11. To: nolu chan (#10)

The point you made may well be valid, but Levin is off on another tangent altogether.

That could well be so - I have not read Levin's brief. I heard the gist of what he is doing, and then put together the argument I made.

If I were arguing the appointments clause issue, I would assert the substance over form rule. Sure, Mueller is CALLED thus and so, but the actual substance of what he is DOING is acting as a roving US Attorney. I would make this the first prong of my argument.

The sweeping powers that Mueller has exercised are more formidable than any we have seen exercised before (though Ken Starr got into this territory, I believe). The analogy I used was that of the paymaster clerk who is appointed as such, but then sent to actually command a warship. Whatever the putative title he was given - to evade an aspect of the law - his actual FUNCTION would be that of a naval officer, and as such he would subject to the laws governing naval officers.

Mueller is wielding enormous power, power that our Constitution itself does not envison being granted to everybody without the supervision of the President OR Congress. I think Levin has a very good point here - assuming that is what he is arguing.

What you seem to be saying - and please realize I have not taken any time to go research any of this, I'm just applying reason and a matter-of-fact analysis of what is going on out there - is that because Mueller was duly appointed under the statute, that the constitutional appointments clause is not in play - the form has been met, and the substance is not at issue.

I would say that in most cases, that's the way at works. But here, we are talking about a legal assault on the President of the United States, by an agent of a part of the Executive Branch who is not only not subject to the President, apparently, but who is ALSO resisting Congressional oversight.

The degree of power being exercised and asserted by Mueller here vastly exceeds the power of any US Attorney. The Attorney General cannot resist both the President AND Congress, and operate as he wishes, without oversight.

The substance of what Mueller is doing under the putative title of special prosecutor is the most extreme example of this that we've seen in American history. Ken Starr seemed to do this, somewhat, but he had the backing of Congress, at least, and answered to them. Mueller s not under the control of the Attorney General AND he is stonewalling Congress on providing documents they have demanded.

He is asserting an independence of power that simply does not exist for ANY office under the US Constitution. And it is creating a constitutional crisis.

I understand why Levin asserts that the appointments clause has been violated. The substance of the power that Mueller has been granted, and has arrogated to himself, exceeds that of any constitutional office, and it cannot be created out of air by a bland read of the special counsel appointments clause

As I said before, I think the outcome in court will chiefly depend on the political beliefs of the judge. One could argue that judges do not have the right to judge cases based on their politics, and that is true to the extent that if a judge simply wrote: "I'm a Trump supporter, decision for Trump" that would be reversible error.

But the judge could accept Levin's argument, which is - I expect - along the same vein as I have proposed. And I expect that is exactly what would happen.

In a similar vein, I'm pretty certain that - had the Supreme Court been 5-4 Democrat in 2000, the Florida recount would have been allowed to continue until such time as Al Gore was found to have won.

The special counsel statute was created for the partisan purpose of "getting" Nixon, and it succeeded. But that special prosecutor had the political cover of a Congress that very much wanted to get Nixon.

In a similar vein, Ken Starr was determined to "get" Clinton, and the Republican Congress provided him cover.

Mueller, however, is in new territory. He is seeking to get Trumo, without the backing of Congress. Sure, there are the Never Trumpers on the GOP side who want to get Trump, and they have complicated things, but they also have shrunk in power and status, and their avatar, John McCain, is dying.

If Levin gets the right judge, I believe he will prevail at the District Court level, and if he does, I doubt that the Fifth Circuit or the Supreme Court are going to rush in to save the special counsel.

So, even though I don't know the details of Levin's argument, grosso modo I agree with the concept that, in substance, the special counsel role, as Mueller is shaping it and applying it in this case, exceeds the power of any non-Presidential appointed officer, and as such, is a violation of the constitutional appointments clause.

Ancient cases won't resolve the issue, I don't think, because there was no special counsel in the 19th Century. Nobody would have asserted that a pay clerk could demand a deposition from the President. The degree of power in Mueller's office exceeds anything we have ever seen, and simply can't be asserted by anybody who isn't subject to Congressional approval.

Levin's details probably vary.

Vicomte13  posted on  2018-05-23   6:46:04 ET  Reply   Trace   Private Reply  


#12. To: Vicomte13, nolu chan, y'all (#11)

If everyone challenged by Mueller from now on, -- refused to testify on constitutional grounds, --- could they end this witch hunt?

Or, would it have to go to the Supreme Court first?

Vic ---- even though I don't know the details of Levin's argument, grosso modo I agree with the concept that, in substance, the special counsel role, as Mueller is shaping it and applying it in this case, exceeds the power of any non-Presidential appointed officer, and as such, is a violation of the constitutional appointments clause.

------ The degree of power in Mueller's office exceeds anything we have ever seen, and simply can't be asserted by anybody who isn't subject to Congressional approval.

Thanks for your opinions Vic. --- I'm shocked that even Nolu agrees, to a degree, once you get through the excess of his legalistic bull...

tpaine  posted on  2018-05-23   19:22:49 ET  Reply   Trace   Private Reply  


#13. To: tpaine (#12)

Ken Starr's excesses angered me, but Mueller has blown past Starr in terms of abuse of power. He will be stopped.

Vicomte13  posted on  2018-05-23   20:49:26 ET  Reply   Trace   Private Reply  


#14. To: Vicomte13 (#13)

Mueller has blown past Starr in terms of abuse of power. He will be stopped.

You know I'm a betting man, but I'd have to have some really BIG odds to take that bet...;-)

tpaine  posted on  2018-05-23   21:29:08 ET  Reply   Trace   Private Reply  


#15. To: Vicomte13 (#11)

Ancient cases won't resolve the issue, I don't think, because there was no special counsel in the 19th Century. Nobody would have asserted that a pay clerk could demand a deposition from the President. The degree of power in Mueller's office exceeds anything we have ever seen, and simply can't be asserted by anybody who isn't subject to Congressional approval.

The below opinion, regarding the Independent Counsel, may provide relevant insight into whether the appointment of Special Counsel Mueller was constitutional or not.

Morrison v Olsen, 483 US 654 (1988)

Syllabus

[655]

Held:

1. There is no merit to appellant's contention-based on Blair v. United States, 250 U. S. 273, which limited the issues that may be raised by a person who has been held in contempt for failure to comply with a grand jury subpoena-that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. The Court of Appeals ruled that, because appellant had failed to object to the District Court's consideration of the merits of appellees' constitutional claims, she had waived her opportunity to contend on appeal that Blair barred review of those claims. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case or Controversy" is lacking. Pp. 669-670.

2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 670-677.

(a) Appellant is an "inferior" officer for purposes of the Clause, which-after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent- states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. In addition, appellant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by counsel herself or by action of the Special Division. Pp. 670-673.

(b) There is no merit to appellees' argument that, even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch-that

[666]

is, to make "interbranch appointments." The Clause's language as to "inferior" officers admits of no limitation on interbranch appointments, but instead seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." The Clause's history provides no support for appellees' position. Moreover, Congress was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers, and the most logical place to put the appointing authority was in the Judicial Branch. In light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, appointment of independent counsel by that court does not run afoul of the constitutional limitation on "incongruous" interbranch appointments. Pp. 673-677.

3. The powers vested in the Special Division do not violate Article III, under which executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III. Pp. 677-685.

(a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Moreover, the Division's Appointments Clause powers encompass the power to define the independent counsel's jurisdiction. When, as here, Congress creates a temporary "office," the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the office's scope in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's request for the appointment of independent counsel in the particular case. Pp. 678-679.

(b) Article III does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powerssuch as the passive powers to "receive" (but not to act on or specifically approve) various reports from independent counsel or the Attorney General- do not encroach upon the Executive Branch's authority. The Act

[667]

simply does not give the Division power to "supervise" the independent counsel in the exercise of counsel's investigative or prosecutorial authority.

And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts. Pp. 680-681.

(c) The Special Division's power to terminate an independent counsel's office when counsel's task is completed-although "administrative" to the extent that it requires the Division to monitor the progress of counsel's proceedings and to decide whether counsel's job is "completed" — is not such a significant judicial encroachment upon executive power or upon independent counsel's prosecutorial discretion as to require that the Act be invalidated as inconsistent with Article III. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway-this power is vested solely in the Attorney General. Pp. 682-683.

(d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States. The Act gives the Division itself no power to review any of the independent counsel's actions or any of the Attorney General's actions with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Moreover, the Act prevents the Division's members from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office." Pp. 683-685.

4. The Act does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch. Pp. 685-696.

(a) The Act's provision restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, does not impermissibly interfere with the President's exercise of his constitutionally appointed functions. Here, Congress has not attempted to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch. Bowsher v. Synar, 478 U. S. 714, and Myers v. United States, 272 U. S. 52, distinguished. The determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official does not turn on whether or not that official is classified as "purely executive." The

[668]

analysis contained in this Court's removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Cf. Humphrey's Executor v. United States, 295 U. S. 602; Wiener v. United States, 357 U. S. 349. Here, the Act's imposition of a "good cause" standard for removal by itself does not unduly trammel on executive authority. The congressional determination to limit the Attorney General's removal power was essential, in Congress' view, to establish the necessary independence of the office of independent counsel. Pp. 685-693.

(b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch's role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other information and to oversight of the independent counsel's activities, functions that have been recognized generally as being incidental to the legislative function of Congress. Similarly, the Act does not work any judicial usurpation of properly executive functions. Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. Even though counsel is to some degree "independent" and free from Executive Branch supervision to a greater extent than other federal prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Pp. 693-696.

267 U. S. App. D. C. 178, 838 F. 2d 476, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 697. KENNEDY, J., took no part in the consideration or decision of the case.

- - - - - - - - - - - - - - - - - - - -

https://www.scribd.com/document/380024639/Morrison-v-Olsen-483-US-654-1988

nolu chan  posted on  2018-05-23   23:35:28 ET  Reply   Trace   Private Reply  


#16. To: tpaine (#15)

Ping. I meant to address you too.

nolu chan  posted on  2018-05-23   23:36:40 ET  Reply   Trace   Private Reply  


#17. To: nolu chan (#16) (Edited)

Ping. I meant to address you too.

Why? --- Do you really expect me to have some opinion about your spamming? Your so-called replies are only a waste of time to look at..

Get a life, and it you intend to make a point, to have something valid to say, cut the crap, and post it in your own words..

tpaine  posted on  2018-05-23   23:53:32 ET  Reply   Trace   Private Reply  


#18. To: tpaine, nolu chan (#17)

nolu chan: Ping. I meant to address you too.

tpaine: Why? --- Do you really expect me to have some opinion about your spamming? Your so-called replies are only a waste of time to look at.. Get a life, and it you intend to make a point, to have something valid to say, cut the crap, and post it in your own words..

Chan has the tenacity of biting at your heels as though he was a Chihuahua dawg.

buckeroo  posted on  2018-05-24   0:01:06 ET  Reply   Trace   Private Reply  


#19. To: buckeroo (#18)

Chan has the tenacity of biting at your heels as though he was a Chihuahua dawg.

He's more like a toothless pup, worrying a roll of toilet paper that somehow he thinks is our rule of law..

He doesn't have any constitutional sense. He looks on 'the law' as if it was holy scripture.

tpaine  posted on  2018-05-24   0:37:48 ET  Reply   Trace   Private Reply  


#20. To: tpaine (#17)

Why?

#12 and #14. It was a courtesy ping. I will desist with courtesy at your request.

nolu chan  posted on  2018-05-24   0:45:32 ET  Reply   Trace   Private Reply  


#21. To: buckeroo (#18)

Chan has the tenacity of biting at your heels as though he was a Chihuahua dawg.

Come along chihuahua, I want to hear you say you quiero Taco Bell.

nolu chan  posted on  2018-05-24   0:46:30 ET  Reply   Trace   Private Reply  


#22. To: tpaine (#17)

Do you really expect me to have some opinion about your spamming? Your so-called replies are only a waste of time to look at..

I am sorry that you are incapable of reading court opinions and making sense of them, and have to get your opinions on law from wingnut web sites.

It is sad that you find Morrison a waste of time to look at.

nolu chan  posted on  2018-05-24   0:50:06 ET  Reply   Trace   Private Reply  


#23. To: nolu chan, misterwhite, Y'ALL (#22) (Edited)

I am sorry that you are incapable of reading court opinions and making sense of them, and have to get your opinions on law from wingnut web sites.

I'm having no trouble at all in following your destruction of misterwrong on the 2nd amendment. Congrats...

But don't think you're bullshitting anyone here about your true allegiance. I doubt you have any true regard for the 2nd.. This is all about you trying to prove you're smarter than your opponents..

No one gives a shit..

tpaine  posted on  2018-05-24   1:36:44 ET  Reply   Trace   Private Reply  


#24. To: nolu chan (#21)

Come along chihuahua, I want to hear you say you quiero Taco Bell.

"Drop the chalupa! Drop the chalupa!"

Vicomte13  posted on  2018-05-24   13:51:26 ET  Reply   Trace   Private Reply  


#25. To: tpaine (#0)

http://www.breitbart.com/video/2018/05/22/mark-levin-appointment-of-robert-mueller-utterly-unconstitutional/

Mark Levin: Appointment of Robert Mueller ‘Utterly Unconstitutional’ — In Violation of Article II

Jeff Poor
Breitbart
May 22, 2018

Tuesday on Fox News Channel’s “Hannity,” nationally syndicated radio host Mark Levin made the argument that Department of Justice special counsel Robert Mueller was serving in an unconstitutional capacity in violation of Article 2 of the Constitution.

Levin said there was a distinction between principal officers and inferior officers, with principle officers requiring confirmation by the U.S. Senate. Mueller is acting as a principal officer in violation of Article II, Levin said.

Partial transcript as follows:

We have something in the Constitution called the appointments clause. And it applies to principal officers of the executive branch. There’s inferior officers, you know, like a chief of staff, an administrative assistant who reports to a principle. Then there’s principal officers. As an example, every single United States attorney in the United States has to be nominated by the president of the United States and confirmed by the Senate because our founders made clear that they wanted both branches of government involved in appointments of these senior level people. You have assistant secretaries in departments and cabinet secretaries, and I said U.S. Attorneys.

Here’s the problem. The appointment of Mueller is utterly unconstitutional for a number of reasons. Rod Rosenstein gave him an agenda that is so broad, not a specific individual, not a specific statute, not even a specific matter, and not only was the initial appointment incredibly broad. He keeps expanding it. So this special counsel’s different than past special counsels. He’s more like a roving U.S. Attorney.

Also, we learned something today that is absolutely incredible from Politico. It says court filings indicate when lawyers appeared in court earlier this year, they did so not only as representatives of Mueller’s office, but they received an appointment, a special assistant United States attorney appointment in the eastern district of Virginia.

They are, in effect, assistant United States attorneys. Robert Mueller wanted to expand their power. They report to him. If they’re assistant United States attorneys or special assistant United States attorneys that makes Mueller, without question, the equivalent of the United States attorney.

So, what’s unique about him and past independent counsel and special counsel is the massive breadth of his investigation. He’s going to into bank fraud, wire fraud, he’s going into Russia, he’s going into a number of other countries. He’s interviewed hundreds of individuals, tens of thousands, hundreds of thousands of documents. He’s not an inferior employee, like an administrative assistant or anything of that sort. He’s a principal officer.

Under the appointments clause of the United States Constitution, Article II, Mr. Rosenstein usurped the authority of the president of the United States to nominate whomever he wants as a prosecutor, and Mr. Rosenstein usurped the power of the United States Senate, which has the control over the confirmation or not. Mr. Mueller is serving unconstitutionally in violation of the appointments clause of the Constitution because of the way Rosenstein appointed him, because of expanding his authority, because Mr. Mueller has expanded his own authority with these four now assistant United States attorneys.

And every defendant, in this case, every witness, in this case, everybody who received a subpoena in this case, whatever federal court it is, should raise the issue of the appointments clause of the Constitution, that Mr. Mueller is conducting himself and is appointment is unconstitutional.

= = = = = = = = = = = = = = = = = = = =

Rod Rosenstein gave him an agenda that is so broad, not a specific individual, not a specific statute, not even a specific matter, and not only was the initial appointment incredibly broad. He keeps expanding it. So this special counsel’s different than past special counsels. He’s more like a roving U.S. Attorney.

This may violate the Federal act regarding appointments, but not the Constitution. Perhaps surprisingly, Levin does not seem to point out that Mueller was apparently not appointed to investigate any specific alleged crime.

Any appearance of looking like a roving U.S. Attorney only happened after the original appointment and the appointment cannot be rendered unconstitutional thereby.

Also, we learned something today that is absolutely incredible from Politico. It says court filings indicate when lawyers appeared in court earlier this year, they did so not only as representatives of Mueller’s office, but they received an appointment, a special assistant United States attorney appointment in the eastern district of Virginia.

They are, in effect, assistant United States attorneys.

The attorneys only attached to Mueller after the original appointment and cannot render the original appointment unconstitutional. They may be held to have improperly acted as representatives of the Special Counsel and as U.S. Attorneys at the same time.

He’s interviewed hundreds of individuals, tens of thousands, hundreds of thousands of documents. He’s not an inferior employee, like an administrative assistant or anything of that sort. He’s a principal officer.

Under the appointments clause of the United States Constitution, Article II, Mr. Rosenstein usurped the authority of the president of the United States to nominate whomever he wants as a prosecutor, and Mr. Rosenstein usurped the power of the United States Senate, which has the control over the confirmation or not.

The assertions do not justify the conclusion. Mueller may be fired by the Acting Attorney General. His position is temporary. He does not qualify as a principal officer requiring appointment by the President and confirmation by the Senate.

Mr. Mueller is serving unconstitutionally in violation of the appointments clause of the Constitution because of the way Rosenstein appointed him, because of expanding his authority, because Mr. Mueller has expanded his own authority with these four now assistant United States attorneys.

Acts occcurring after the appointment cannot render the act of appointment unconstitutional. There may be unlawful acts, but these would not render the appointment unconstitutional as repugnant to the appointments clause of the Constitution.

nolu chan  posted on  2018-05-24   16:54:18 ET  Reply   Trace   Private Reply  


#26. To: tpaine (#23)

But don't think you're bullshitting anyone here about your true allegiance. I doubt you have any true regard for the 2nd..

I doubt you have any true allegiance to the Constitution. There is no evidence that you have made any attempt to learn what you keep blathering about.

nolu chan  posted on  2018-05-24   17:11:36 ET  Reply   Trace   Private Reply  


#27. To: nolu chan (#26)

But don't think you're bullshitting anyone here about your true allegiance. I doubt you have any true regard for the 2nd.. This is all about you trying to prove you're smarter than your opponents..--- tpaine

Nolu --- I doubt you have any true allegiance to the Constitution. There is no evidence that you have ----

When I was 18, I took an oath and served 3 years in the US Army. ---- Have you served, or sworn the oath as an officer of the court?

tpaine  posted on  2018-05-24   23:10:28 ET  Reply   Trace   Private Reply  


#28. To: tpaine (#27)

When I was 18, I took an oath and served 3 years in the US Army.

Thank you for your service. I served 20 years active duty in the Navy.

nolu chan  posted on  2018-05-24   23:34:39 ET  Reply   Trace   Private Reply  


#29. To: nolu chan (#28)

Thank you for your service of 20 years active duty in the Navy.

Did your service train you in spamming internet sites? --- What are you trying to prove here, that you're the smartest wannabe shyster at LF?

tpaine  posted on  2018-05-25   0:32:47 ET  Reply   Trace   Private Reply  


#30. To: tpaine (#29)

Did your service train you in spamming internet sites?

Internet? What internet? It was the dawn of civilation when Moby Dick was still a guppy.

Did your service train you in spamming internet sites?

What are you trying to prove here, that you're the smartest wannabe shyster at LF?

I attempted to show that Mark Levin's position was:

We have something in the Constitution called the appointments clause. And it applies to principal officers of the executive branch. There’s inferior officers, you know, like a chief of staff, an administrative assistant who reports to a principle. Then there’s principal officers. As an example, every single United States attorney in the United States has to be nominated by the president of the United States and confirmed by the Senate because our founders made clear that they wanted both branches of government involved in appointments of these senior level people. You have assistant secretaries in departments and cabinet secretaries, and I said U.S. Attorneys.

Here’s the problem. The appointment of Mueller is utterly unconstitutional for a number of reasons.

His position was that the appointment of Mueller was unconstitutional because it was not made by the President, and approved by the Senate. In this, he held a violation of the Appointments Clause and held that Mueller was a Principal Officer.

U.S. Supreme Court precedent appears to indicate that Mueller is not a Principal Officer, and Mueller's temporary appointment could not violate the Appointments Clause.

nolu chan  posted on  2018-05-29   17:29:01 ET  Reply   Trace   Private Reply  


#31. To: nolu chan (#30)

What are you trying to prove here?

nolu --- U.S. Supreme Court precedent appears to indicate that Mueller is not a Principal Officer, and Mueller's temporary appointment could not violate the Appointments Clause.

Mark Levin is a well known, nationally respected lawyer.. --- Conversely, you have refused to offer this site any qualifications as to why we should respect your opinions over others..

Instead, you post excessively long legal opinions from courts that may, or may not, address the issue, ---- and which, - supposedly, -- prove your point..

And I say your point is to prove you're the smartest shyster here, which is a silly goal, seeing that no one cares...

tpaine  posted on  2018-05-30   13:43:41 ET  Reply   Trace   Private Reply  


#32. To: tpaine (#31)

Mark Levin is a well known, nationally respected lawyer.. --- Conversely, you have refused to offer this site any qualifications as to why we should respect your opinions over others..

Instead, you post excessively long legal opinions from courts that may, or may not, address the issue, ---- and which, - supposedly, -- prove your point..

I did not ask you to respect my opinion over Mark Levin.

I provided U.S. Supreme Court opinions which indicate Mark Levin is wrong.

SCOTUS offers that an official given a temporary appointment, subject to termination by a department head, such as the Attorney General or Acting Attorney General, is not subject to the Appointments Clause requirement of being nominated by the President, and only appointed by the President after confirmation by the Senate.

You may be incapable of reading the SCOTUS opinions, or choose to ignore them. You have every right to act as dumb as you choose.

In the meantime, Mueller is still the Special Counsel, and everyone who matters, including President Trump and his administration, are ignoring Levin's blathering bombshell about a supposed constitutional violation.

nolu chan  posted on  2018-05-31   19:12:46 ET  Reply   Trace   Private Reply  


#33. To: nolu chan (#32)

I provided U.S. Supreme Court opinions which indicate Mark Levin is wrong.

you post excessively long legal opinions from courts that may, or may not, address the issue, ---- and which, - supposedly, -- prove your point..

And, ------ your point is to prove you're the smartest shyster here, which is a silly goal, seeing that no one cares...

tpaine  posted on  2018-06-01   11:14:43 ET  Reply   Trace   Private Reply  


#34. To: tpaine (#33)

you post excessively long legal opinions from courts that may, or may not, address the issue, ---- and which, - supposedly, -- prove your point..

It matters not how long a relevant court opinion is. You don't read or understand court opinions.

nolu chan  posted on  2018-06-01   19:14:16 ET  Reply   Trace   Private Reply  


#35. To: nolu chan (#34)

I am sorry that you are incapable of reading court opinions and making sense of them, and have to get your opinions on law from wingnut web sites.

It matters not how long a relevant court opinion is. You don't read or understand court opinions.

You're repeating yourself.

And as I said before: ----

I'm having no trouble at all in following the opinions you've posted in your destruction of misterwrong on the 2nd amendment.

Congrats on your good work there. Too bad you can't use good judgment all the time..

tpaine  posted on  2018-06-02   18:49:58 ET  Reply   Trace   Private Reply  


#36. To: tpaine (#35)

I'm having no trouble at all in following the opinions you've posted in your destruction of misterwrong on the 2nd amendment.

But you indicate extreme inability to follow the opinions I posted on this thread, to the extend that in your #34, you stated, "you post excessively long legal opinions from courts that may, or may not, address the issue...."

If you feel a court opinion is excessively long, send a sternly worded letter to the court.

If you cannot see the relevance of the court opinions I posted, and that they address the issue, you exhibit a comprehension problem.

See, e.g. Morrison v. Olsen,

2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 670-677.

(a) Appellant is an "inferior" officer for purposes of the Clause, which—after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent—states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. In addition, appellant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by counsel herself or by action of the Special Division.

nolu chan  posted on  2018-06-04   0:58:41 ET  Reply   Trace   Private Reply  


#37. To: nolu chan (#36)

you indicate extreme inability to follow the opinions I posted on this thread, to the extend that in your #34, you stated, "you post excessively long legal opinions from courts that may, or may not, address the issue...."

If you feel a court opinion is excessively long, send a sternly worded letter to the court.

Your comment above is ludicrous, seeing that it is some of YOUR posts that are excessively long in an attempt at self-aggrandizement..

tpaine  posted on  2018-06-04   12:46:03 ET  Reply   Trace   Private Reply  


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