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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In 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: 3066 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 Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 8. #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   Untrace   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   Untrace   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   Untrace   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   Untrace   Trace   Private Reply   Replies to Comment # 8. #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 00:25:46 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 8. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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