Special Prosecutors in the U.S.

Dean Reuter:                     Welcome to the Federalist Society's Practice Group Podcast. The following podcast hosted by the Federalist Society's Criminal Law and Procedure and Federalism and Separation of Powers Practice Groups was recorded on Friday, May, 25, 2018 during a live teleforum conference call held exclusively for Federalist Society members.

Dean Reuter:                     Welcome to the Federalist Society's Practice Group Teleforum Conference Call as today, we discuss the use and appointment of special prosecutors in the United States. I'm Dean Reuter, Vice President, General Counsel and Director of Practice Groups here at the Federalist Society. Please note that all expressions of opinion are those of the expert on today's call, the Federalist Society does not itself take positions on any legal or policy matters. Also, this call is being recorded for use as a podcast in the future and possibly transcribed and it is open to the press.

Dean Reuter:                     We're very pleased to welcome Professor Steven G. Calabresi. He's the Clayton J. and Henry R. Barber Professor of Law at Northwestern University School of Law and the Federalist Society Founder and Board Member. He's going to give us opening remarks of about 10 minutes or so but then as always, we'll be turning to the audience for your questions so please have those in mind for when we get to that portion of the program.

Dean Reuter:                     With that, Professor Calabresi, the floor is yours.

Steve Calabresi:                Thank you very much Dean for inviting me to be on this conference call. I want to begin by emphasizing what Dean said that the opinions I'm about to express are only my own opinions and not the opinions of the Federalist Society or of Northwestern University where I work. What I wanted to talk about today is the constitutionality of Robert Mueller's appointment to be special counsel to investigate the supposed collusion with Russia by the Trump campaign in the 2016 presidential election.

Steve Calabresi:                In my opinion, the appointment of Robert Mueller to be a special counsel violates the Appointments Clause of the constitution and is therefore unconstitutional. All actions taken by Mueller since his appointment on May 17, 2017 are therefore null and void including all of the indictments he's brought, all of the plea bargains he's entered into, all of the searches he has conducted, his phone logging of Michael Cohen and subsequent referral of Michael Cohen to the Southern District of New York for prosecution and any other governmental actions he's taken.

Steve Calabresi:                The Appointments Clause of the constitution reads as follows. It says, "The President 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."

Steve Calabresi:                The US Supreme Court has vigilantly enforced the Appointments Clause ever since its landmark opinion in Buckley against Valeo in 1976 where the court struck down an active congress that provided the two members of the newly created federal election commission would be nominated by the President, two would be nominated by the speaker of the house of representatives and two would be nominated by the President pro tempore of the Senate.

Steve Calabresi:                The Supreme Court quite rightly said that all six members of the federal election commission must be nominated by the President under the Appointments Clause and the court held that the Appointments Clause constituted the vital power of both the President and the Senate. The constitution for purposes of appointment divides all its officers into two classes. Principal officers are selected by the President with the advising consent of the Senate and that's the default rule, presidential nomination and Senatorial confirmation but the Appointments Clause then goes on to say, "But Congress may allow the President, the heads of departments or the courts of law to appoint inferior officers."

Steve Calabresi:                The Supreme Court has, in a number of cases, interpreted the dividing line between principal officers who must be nominated by the President and confirmed by the Senate and inferior officers who can be appointed by the head of a department or by another executive branch official. There are two tasks that the court has developed as to whether or not an officer is an inferior officer or a principal officer.

Steve Calabresi:                In Edmond against the United States issued in 1997, Justice Scalia said that an inferior officer must by definition be someone who has a boss and that boss must be someone who directs and supervises the wok of the inferior officer. Under this test, Mueller is not an inferior officer because although he has a boss in Deputy Attorney General Rod Rosenstein who appointed him, Rosenstein has deliberately chosen not to direct and supervise Mueller's work.

Steve Calabresi:                Mueller's appointment therefore violates the Scalia test as to whether someone is an inferior officer. There is an addition, a second test which was as to officer inferiority which was laid out in Chief Justice William Rehnquist's majority opinion in Morrison against Olson in 1988. In Morrison against Olson, Rehnquist said that for an officer to be inferior, they must first have a boss. Second, perform only certain limited duties. Third, the officer must be limited in jurisdiction and fourth, the officer must be given a job with a fixed ending point.

Steve Calabresi:                Applying the Morrison against Olson test of officer inferiority to Mueller, it must be noted first that he doesn't perform only certain limited duties, he has nationwide jurisdiction thus more powerful than any of the 96 US attorneys all of whom must be nominated by the President and confirmed by the Senate. In fact, Mueller is as powerful as an assistant attorney general and he's more powerful than a US attorney and assistant attorney generals like US attorneys have to be nominated by the President, confirmed by the Senate.

Steve Calabresi:                In addition, Mueller violates the provision of Rehnquist's test in Morrison against Olson that the officer must be limited in jurisdiction. Mueller has much more … has a sweeping jurisdiction, has indicted over a dozen people including 13 Russian citizens, three Russian business entities and he's indicted people for offenses that have no relation at all to the alleged collusion of the Trump campaign with Russia in the 2016 elections.

Steve Calabresi:                It's thus absolutely clear that under either Morrison v. Olson test for officer inferiority or the Edmond against the United States test for officer inferiority, Mueller is not an inferior officer, he's a principal officer and since he's not been nominated by the President and confirmed by the Senate, everything he has done since May 17, 2017 has been unconstitutional and has been illegal. The consequence of this is that all of the indictments that Mueller has brought are unconstitutional. Any plea bargains he's entered into are unconstitutional. His referral of telephone logs and of an investigation of Michael Cohen, President Trump's lawyer to the Southern District of New York was unconstitutional and whatever the Southern District of New York has done with that information is the fruit of a poisonous tree which the federal courts will end up suppressing under the exclusionary rule.

Steve Calabresi:                In other words, Mueller has less than abused his power and authority. This is illustrated in part by comparing Mueller to some [inaudible 00:09:22] special counsels who have, or special prosecutors who have existed. In Morrison against Olson, the Supreme Court upheld a special prosecutor to investigate Ted Olson but it did so only because at the time, Ted Olson had left government and was a private individual and the prosecutor was investigating only two charges against Ted Olson, thus the special prosecutor in Morrison against Olson was limited in her duties and the investigation was very limited in scope.

Steve Calabresi:                In contrast, Mueller has indicted over a dozen people and by indicting Russian citizens and business entities, he's affected our foreign policy with Russia. He has in fact exercised more power than the 96 US attorneys, all of whom have to be nominated by the President and confirmed by the Senate and he's in fact exercising the power of an assistant attorney general and assistant attorney generals have always been nominated by the President and confirmed by the Senate.

Steve Calabresi:                In some, I believe the Mueller appointment is unconstitutional and that all the actions he's taken since May 17, 2017 are constitutionally barred and any evidence that he's developed since Mueller's appointment are as a result of Mueller's appointment on May 17, 2017 is fruit of a poisonous tree that has to be, will be and should be suppressed by the federal courts when and if any litigation of these indictments occurs.

Steve Calabresi:                With that opening statement, I'll turn it back to Dean and I'm happy to answer questions.

Dean Reuter:                     Very good. In a moment, we'll all hear an announcement that will say the floor mode is on. After you hear that announcement, if you have a question, push the star button and then the pound button on your telephone. Once again, if you have a question, push the star button and then the pound button on your telephone. If you joined us late, a reminder that this call is being recorded and will likely be transcribed. Unusually, this call is also open to the press.

Dean Reuter:                     It looks like we're going to begin with four questions so I have a couple of questions of my own but I will defer to your audience. Let's head in the direction of our first audience member. Go right ahead caller.

Ted Frank:                           Hi. Ted Frank here. Thanks for doing this. I do have my questions which is you seem to be conflating the constitutionality of what Mueller is doing with whether he's exceeded the scope of what a special counsel can do under 28 CFR 600 because 28 CFR 600 does limit the jurisdiction. It does limit the duties, it doesn't include policymaking and it would seem to at least, the 28 CFR 600 definition of what the special counsel is would seem to satisfy Morrison and even Edmond because the attorney general has to approve of what the special counsel does and can override what the special counsel does.

Ted Frank:                           Can you address that?

Steve Calabresi:                Certainly. That limitation in the CFR is important and is relevant but in fact, from the point of view of a constitution, Mueller is in fact exercising more power than any of the US attorneys even if he is subject to being overruled by Rod Rosenstein and that's evidenced by the fact that unlike the 96 US attorneys, he has nationwide jurisdiction. He's able to indict 13 Russian citizens and three Russian business entities which has major foreign policy implications and he is in effect behaving in a way that it makes him more powerful and more famous than any of the 96 US attorneys.

Steve Calabresi:                I would ask people listening to this call, if they think of the name of any of the 96 US attorneys and if they can think of the name of one of those, do they really think that that person is more powerful than Robert Mueller? The question on whether Mueller is a principal or an inferior officer is basically, is he more like an assistant attorney general or a US attorney who has to be nominated by the President and confirmed by the Senate or is he more like an assistant US attorney who is an inferior officer?

Steve Calabresi:                I think the reality of the Mueller investigation over the last year confirms that he is behaving much more like an assistant attorney general or a US attorney than he is behaving like an assistant US attorney. To the extent that the CFR definition doesn't take account of that, it simply isn't constitutionally adequate to render Mueller an inferior officer.

Steve Calabresi:                The Supreme Court has in a number of cases passed on the question of whether or not someone is a principal or an inferior officer and that's a constitutional test. In Morrison against Olson and in Edmond against the United States and in Free Enterprise Fund against PCAOB, the Supreme Court did not refer to the CFR rule you're mentioning but it did set out the tests that I mentioned previously, the Scalia test that an inferior officer must be someone who is being actively supervised and directed by a principal officer or the Rehnquist test that an inferior officer has to be limited in their jurisdiction and limited in the matters they can investigate.

Dean Reuter:                     Do you have a follow-up question?

Ted Frank:                           Yes. Are you saying 28 CFR 600 is unconstitutional? Are you saying it's not acting within the scope of 28 CFR 600?

Steve Calabresi:                I'm saying that 28 CFR 600 is helpful in determining officer inferiority but it's not definitive. What is definitive are the rulings of the Supreme Court in three cases that have addressed this issue? Morrison against Olson in 1988, Edmond against the United States in 1996 and Free Enterprise Fund against PCAOB in 2010. The Supreme Court have said that officer inferiority must be determined by these two tests. It doesn't refer to the CFR rule you're referring to. If the CFR rule you're referring to violates the Supreme Court's tests, then it also violates what the Supreme Court have said about the constitutional line here.

Ted Frank:                           For example in Morrison, where the independent counsel was authorized by a statute that was … gave the independent counsel much more power than the special counsel has here, they took the statute rather than at the actions of the officer. You would seem to be … It's not clear whether you're saying that it's possible to appoint somebody under the same statute and sometimes, they're an inferior officer and sometimes, they're not or whether you're saying the statute or in this case the regulation is constitutionally impermissible.

Steve Calabresi:                I think it's constitutionally impermissible as a support for Mueller's … the authority that Mueller is actually exercising. One way of analyzing the line between principal officers and inferior officers is that not only must an inferior officer be supervised and directed by a principal officer the way assistant US attorneys are supervised and directed by a US attorney but also, inferior officers simply can only investigate one or maybe a couple of people in only a limited number of crimes.

Steve Calabresi:                In Morrison against Olson, there was one person, a former government official, Ted Olson who was being investigated and he was being investigated on two counts of not providing information to the House of Representatives because of assertions of executive privilege. Mueller's investigation is much, much broader than the investigation in Morrison against Olson. It involves dozens of people, dozens of crimes, it's nationwide in scope, it's in fact international in scope and so with all due respect to the statute and to CFR, I think Morrison is much too important … I think Mueller is much too important an officer to be called an inferior officer.

Steve Calabresi:                Can anyone name any of the 96 US attorneys and specify which ones are more powerful than Mueller? I don't think that most of our listeners would be able to name very many, if any of the 96 US attorneys and it's clear that Mueller in his actions has dominated the headlines for over a year and he is exercising more power than assistant attorney generals are exercising and under the constitution, there simply is no way around that. A person like that is a principal officer, not an inferior officer and they have to be nominated by the President and confirmed by the Senate.

Dean Reuter:                     We've got five more questions pending. This is Dean Reuter again. Let me just ask a quick follow-up question of you professor. Could this special prosecutor be constitutional if his duties were narrowly enough to find in the charging document or whatever the document is that did empowered him and perhaps, if decisions to indict were made by a principal officer?

Steve Calabresi:                I think that if the … One of the problems with … There are several problems with this and this investigation in addition to its unconstitutionality. One problem is that the principal action that triggered the appointment of Robert Mueller was President Trump firing James Comey as FBI Director. The issue that was raised was whether that was an obstruction of justice because Trump had something to hide about the alleged collusion of his 2016 presidential campaign with Russia.

Steve Calabresi:                To begin with, Robert Mueller should never have been picked to run an investigation into the firing of James Comey for the simple reason that the two men are close friends and work associates and they worked together for eight years, four in the George W. Bush administration and four more years in the Obama administration. Mueller who is an outstanding man with a stellar reputation made a huge mistake in accepting this appointment because nobody should investigate the legality of the firing of one of their close work associates and personal friends so there's a huge conflict of interest there.

Steve Calabresi:                Rosenstein also made a mistake in picking Mueller to be a special counsel so I don't think there's any circumstance under which Mueller should be investigating the firing of Comey. I think that someone else … The question is to whether someone else could be picked to investigate the firing of Comey and collusion by the campaign to Russia would depend on whether the order specifying the jurisdiction of the special counsel was narrowly drawn and applied only to a few individuals.

Steve Calabresi:                We don't know what the order appointing Mueller says because Deputy Attorney General Rod Rosenstein has chosen to keep it secret and it was only after he was subpoenaed by a federal district judge in Virginia that he agreed to provide a copy of that order to the federal district judge. Senator Grassley is now asked for a copy of that order to be provided to the US Senate. With all due respect to Deputy Attorney General Rosenstein, secret orders empowering special counsels are reminiscent of the secret trials that were held by the court of Star Chamber during the 1630s in which earned that court an infamous reputation in English and American constitutional history.

Steve Calabresi:                We simply don't know what the scope is of Mueller's investigation because Rosenstein has, in my view, unconstitutionally not made that order public. I am skeptical of special counsels investigating the President. I think there's no problem with appointing a special counsel to investigate the Vice President, a cabinet secretary, a deputy cabinet secretary or members of an administrative agency because all of them are high ranking officials and I think probably the way in which they should be handled is that Congress should create an office of a special counsel to investigate allegations into misbehavior by the Vice President or the cabinet or other high ranking government officials and then the President should nominate someone to fill that office and the Senate should confirm someone to fill that office.

Steve Calabresi:                Obviously, the filling of that office will involve intense negotiations between the President and the Senate over who is an appropriate officer to serve as a special counsel. When it comes to investigating the President of the United States, I do not believe that it's constitutional to appoint a special counsel to investigate the President of the United States because such investigations distract him from a job which he has to do 24 hours a day, seven days a week unlike the job that Congress does and unlike the job that Supreme Court justices do.

Steve Calabresi:                I think the proper entity to investigate the President of the United States is The House of Representatives which has the impeachment power and I think The House should set up a special committee on impeachments and they should staff it with very able public integrity lawyers armed with subpoena power. Whenever they think the President may have crossed a constitutional line, the public integrity officers working for the House committee on impeachment should impanel grand juries, issue subpoenas and develop information.

Steve Calabresi:                The constitution requires as to the President, you investigate first then you impeach and remove and then after that, you prosecute for criminal behavior. We have inverted that process and we're starting by looking into criminal behavior when the real issue is whether President Trump is fit to serve as president or whether he engaged in high crimes and misdemeanors as a candidate to color his tenure in office.

Dean Reuter:                     Once again, we're speaking with Professor Steven Calabresi. We are on the record with press able to attend. We've got five questions pending. Let's take another call.

Speaker 4:                           Yeah. Hi Professor. Thanks for doing this. I'm still having trouble I guess figuring out how this squares with the Olson case which upheld the independent counsel. Are you saying that because in that case, the independent counsel was charged with a very narrow task and was more like a line prosecutor that that is what made that kosher and also as part of that, my recollection was Justice Scalia is dissent on that focused on the separation of powers issue of that and not as much on what the individual duties or charges were but there was a separation of powers issue because it was a prosecutor appointed outside the executive branch.

Speaker 4:                           I wonder if you can address that.

Steve Calabresi:                Sure. I should mention at the outset that I clerked for Justice Scalia the term in which Morrison against Olson was argued and decided and the term during which he wrote his dissent. My argument is that the Mueller investigation is completely unlike Alexia Morrison's investigation because Alexia Morrison was only investigating one former government official, Ted Olson who had been the Assistant Attorney General for the Office of Legal Counsel and he was charged with only two crimes both of which related to withholding documents from the House of Representatives while asserting executive privilege.

Steve Calabresi:                That was a narrow investigation of one former government official for the commission of two crimes. In contrast, Mueller is investigating well over a dozen, maybe two dozen or more people. He's entered into multiple plea agreements, he's brought multiple indictments of various different people in different parts of the country, he has nationwide jurisdiction and his investigation is not limited in the number of people it applies to, nor is it limited in scope. He has nationwide, indeed international jurisdiction as evidenced by his indicting 13 Russian citizens and three Russian business entities and his investigation is far more sweeping than Alexia Morrison's investigation.

Steve Calabresi:                What Rehnquist said in upholding Alexia Morrison's investigation was that it did not intrude too much on presidential power. It's obvious to me that applying that test, the Mueller investigation, that the Mueller investigation does intrude too much on presidential power. Now, Morrison against Olson was a 7 to 1 opinion. Chief Justice Rehnquist wrote the majority opinion and as you noted, Justice Scalia dissented.

Steve Calabresi:                Justice Scalia said that to be an inferior officer, Morrison must also be directed and supervised by a principal officer and the three judge courts that appointed her did not have the power to supervise or direct her. In theory, Rod Rosenstein has the power to supervise and direct Robert Mueller but in practice, he's not exercising that power and has forsworn the exercise of that power so either under the test of the Scalia dissent in Morrison which became a majority view in Edmond against the United States and Free Enterprise Fund against PCAOB or under Rehnquist's test of officer inferiority which has never been overruled.

Steve Calabresi:                Either way, Mueller is clearly behaving like a principal officer and his appointment is unconstitutional because he was not nominated by the President and confirmed by the Senate.

Speaker 4:                           Just as a follow-up on that, you're suggesting that the way to handle this is to create an office that would be tasked I guess with investigating a president if there was a belief that he might have committed a high crime or a misdemeanor? Is that something that [inaudible 00:31:17] pass a law, setting up an office and will have to be signed into law by the President or overridden? It sounds like that's-

Steve Calabresi:                Yeah. I think Congress would need to pass a law creating a special counsel, a permanent special counsel and then the President and the Senate would have to negotiate over someone accessible to both of them who would be formally nominated by the President and confirmed by the Senate. This is by the way what was done during the great Teapot Dome Scandal in the 1920s. At the time, the Teapot Dome Scandal was considered the worst scandal in American history.

Steve Calabresi:                Congress responded to it by creating offices of two special counsels to investigate Teapot Dome. Congress specified that one special counsel would be a Republican and the other would be a Democrat and that they could only bring indictments if they both agreed that the case at issue was indictable. Those special prosecutors were nominated by the President and confirmed by the Senate. That's the process that was followed in the Teapot Dome Scandal in the 1920s and that I think is the process that would have to be followed here as to all officers including the Vice President, the cabinet and other major department heads.

Steve Calabresi:                I think the House of Representatives under its rulemaking power can and should create a committee on impeachments staffed with lawyers who have subpoena power and the power to impanel grand juries and that they should … that power should be vigorously used … should be used to investigate any allegation of wrongdoing by a president. Vice presidents and cabinet secretaries can be investigated by the executive branch and prosecuted by the executive branch as was illustrated with Vice President Spiro Agnew who was prosecuted for bribery and resigned as Vice President pleading nolo contendere to the charges of bribery.

Steve Calabresi:                There's no problem with investigating a vice president and cabinet secretaries with a principal officer who's nominated by the President and confirmed by the Senate. I think when it comes to investigating the President himself, it has to be lawyers working for a committee at the House of Representatives on a prospective impeachment.

Dean Reuter:                     Once again, if you have a question for our guest, push the star button then the pound button on your telephone. There are four questions pending. Let me ask a quick follow-up question on your formulation there Professor and the question goes to the removal power. If we have one of these special counsels appointed by the President, confirmed by the Senate, an investigation begins, what's the President's … and this is an investigation of the President, what's the President's removal power under your-

Steve Calabresi:                On the question of the removal power, I agree with the Scalia dissent in Morrison against Olson and I disagree with Chief Justice Rehnquist's majority opinion. I think the President has to in theory, be able to remove anyone who's exercising prosecutorial power because I think prosecutorial power is inherently executive power and the President possesses all of the executive power. I guess what I would say is that in crafting such a statute, I think that the President has to be able to remove the officer in theory.

Steve Calabresi:                In practice, the removal of an officer who's conducting an investigation in good faith and who's been nominated by the President and confirmed by the Senate would presumably trigger immediate demands for impeachment in the House of Representatives.

Dean Reuter:                     Interesting. Once again, if you have a question, push the star button and then the pound button on your telephone. Let's take another call.

Curt Levey:                         Hi Professor. This is Curt Levey with the Committee for Justice. Two questions for you. One, your conclusion rests in part on the fact that Rosenstein is not supervising Mueller. How would a court tell the difference between what you and I suspect which is that he literally isn't supervising him? What Rosenstein would probably say is, "I am supervising him. I gave him a job to do and everything that he's done or presented to me, I have agreed with so there hasn't been reason for me to change anything." How would a court make that determination?

Curt Levey:                         Second question is what do you think are the odds that the question of whether Mueller is an inferior officer would go to the Supreme Court and how would it likely be decided taking into account the political context?

Steve Calabresi:                Sure. Those are great questions. First, because Rosenstein has not made public the order by which he appointed Mueller, we don't know what that order says as to direction and supervision. To me, it's just appalling that that order has not been made public because it's a matter of interest to everyone on this phone call and to all citizens of the United States. I cannot imagine a reason for not making public the order appointing Mueller.

Steve Calabresi:                As to whether Rosenstein is supervising and directing Mueller, he seem to indicate in comments to the press at the time he appointed Mueller that while he could remove Mueller at will, he intended to allow him to proceed independently. Now, I don't think a deputy attorney general can just pluck a private citizen out of the country and delegate to him the kinds of powers that Rosenstein delegated to Mueller. I think he can make someone like that his deputy to the deputy attorney general or a special assistant to the deputy attorney general and he can then supervise such a person in that way.

Steve Calabresi:                If Rosenstein has in fact been supervising and directing Mueller, the evidence of that would need to be made public in a court proceeding and it would be the subject of litigation. I should note however that direction and supervision of an inferior officer is enough along with removal power to satisfy the Scalia test for officer ability. It's not enough to satisfy Chief Justice Rehnquist's test of officer inferiority in Morrison against Olson where Rehnquist clearly said that a special counsel could only investigate a few people and have jurisdiction that was limited in scope and clearly, that doesn't apply to Robert Mueller.

Steve Calabresi:                As to whether this issue … how this issue would come out if it reached the Supreme Court, I think the Supreme Court has been quite vigilant in protecting the appointment power of the President in Buckley against Valeo in 1976, in Edmond against the United States in the 1990s and most recently, the Roberts court in Free Enterprise Fund against PCAOB. I think that the court … I think it is as plain as day that Mueller is more powerful and more famous and he's exercising more authority than any of the 96 US attorneys and even then, most of the assistant attorney generals. Since they all have to be nominated by the President and confirmed by the Senate, I think at least five justices of the Supreme Court and possibly six would reach the same conclusion.

Steve Calabresi:                Chief Justice Roberts clerked for Chief Justice Rehnquist and so it's fair to say and also was a special assistant to former Attorney General William French Smith and was the author of the court's opinion in Free Enterprise Fund against PCAOB. In that opinion, he seemed to make it clear that the court was going to stick very closely to its precedence on officer appointments and on removal power. If the court sticks close to its precedence, I think that would lead Roberts to find Mueller's appointment unconstitutional.

Steve Calabresi:                I think the same thing would be true of Justice Kennedy who has consistently voted for the separation of powers outcome in separation of powers cases. Justice Kennedy has been very vigilant about enforcing the separation of powers. I think that Justices Alito, Thomas and Gorsuch would also likely say that Roberts is … would also likely say that Mueller is a principal officer and I think it's quite possible that Justice Elena Kagan might say that Mueller is a principal officer because Justice Kagan, when she was a law professor at Harvard Law School wrote a famous law review article that essentially endorsed the theory of the unitary executive associated with Scalia which is the very theory that leads me to the conclusion that Mueller's appointment is unconstitutional.

Steve Calabresi:                I think that this is a case where five and possibly six justices of the Supreme Court would find Mueller to be acting unconstitutionally.

Curt Levey:                         Thank you.

Dean Reuter:                     Once again, if you have a question, push the star button then the pound button on your telephone. We've got three questions in the queue at this point and time. Let's turn to another caller.

Mike Stern:                         Hi Professor. This is Mike Stern. I think you answered my original question which was whether you were saying that effectively, only the House could investigate the President. Let me just follow up. I think a couple of times, you've suggested that congressional counsel could impanel a grand jury and issue grand jury subpoenas? Is that what you're saying? Can you elaborate a little bit on the basis for that?

Steve Calabresi:                Sure. Congress has very broad power to conduct investigations. The leading Supreme Court case on the subject is McGrain against Daugherty which was decided I think in 1926. In McGrain against Daugherty, the Senate was seeking to subpoena and compel testimony by the brother of a former attorney general who is suspected of having taken bribes. The Senate sent its own sergeant of arms to Columbus, Ohio. The Senate sergeant at arms arrested the brother of the former attorney general and brought him back to the US capital building where he was held in a jail on the premises of the capital building.

Steve Calabresi:                The brother brought a petition for a writ of habeas corpus saying that the Senate acting alone without the President couldn't arrest and subpoena and compel testimony and that required the action of the executive branch. The Supreme Court disagreed and backed the Senate and it said that the Senate and the House, when they're conducting investigations can even imprison contumacious witnesses as well as subpoena them or ask questions of them.

Steve Calabresi:                McGrain against Daugherty has never overruled. It's good law today. Now, it is also the case that the President, that there is a federal statute under the book … on the books under which the US attorney for the District of Columbia could prosecute someone for contempt of Congress or for refusing to answer questions to Congress. Congress has acted as if it has the inherent authority to do all of those things.

Steve Calabresi:                I would, as a devotee of the separation of powers, I was initially shocked to read McGrain against Daugherty but it is good law and it's based on the fact that prior to the constitution, both the House of Commons and the House of Lords arrested people, compelled them to testify and held them in contempt and imprisoned them while they were in contempt. Those powers according to McGrain against Daugherty passed over to the Senate and to the House of Representatives, so that would be the basis for Congress' authority.

Steve Calabresi:                I'm not sure that Congress even needs to impanel a grand jury to try to compel testimony under McGrain against Daugherty. It's not a question I had thought about or really researched. It may be that Congress simply can do all of those things on its own but Congress as investigatory power is incredibly broad under McGrain against Daugherty and the only protection a citizen has from it is … the protections are twofold. First, someone being questioned by Congress can take the Fifth Amendment and refuse to answer on the grounds that doing so might incriminate them.

Steve Calabresi:                Second, members of the House and Senate run for reelection and if they abuse their power of investigation the way Senator Joe McCarthy did during the 1950s, they can be defeated for reelection as happened to Senator Joe McCarthy in the 1950s.

Mike Stern:                         Just a follow-up. Okay.

Steve Calabresi:                Yeah.

Mike Stern:                         I agree with you that Congress can issue subpoenas and that it has the power of inherent contempt to enforce them on their own but it's the issue of impaneling grand juries and I gather even getting people indicted that I think I'm not aware of any precedence for that. Maybe I just didn't understand.

Steve Calabresi:                Yeah. What I think [crosstalk 00:46:56] can do is that they can imprison people for contempt of Congress.

Mike Stern:                         Yeah. Okay, great. Thank you.

Steve Calabresi:                Yup.

Dean Reuter:                     Once again, we've just now got two questions pending, a little over 10 minutes to go. Let's take another question.

Sean Callahan:                   Hi. This is [Sean Callahan 00:47:16] from [DW 00:47:17] Law School. My question is about the indictment of the Russians. Obviously, a special counsel has to be appointed to be investigate a crime. I wonder whether enough attention has been paid to the question whether in that Russian indictment … the indictment of Russians, Mueller actually probably indicted a crime or indicted conduct that constitutes a crime.

Sean Callahan:                   There's a case in the Ninth Circuit, Canby which is following Hammerschmidt and [Hahs 00:47:54], the Supreme Court cases on defraud clause conspiracy cases. What they basically say is … What Canby basically says is that the mens rea, the mental state to constitute a defraud clause violation is narrow. When the theory rests on someone else's misstatement to a government regulatory agency, that's what Mueller's indictment rests on because Mueller never charged any FARA violations or campaign reporting violations.

Sean Callahan:                   When the theory rests on your conduct causing somebody else to make a reporting violation, you have to intent, have the purpose of causing that misstatement and it's doubtful that tweets or ... are potentially doubtful, that's my question is that tweets or speech about political matters without more would actually satisfy that mens rea standard.

Steve Calabresi:                Yeah. I completely agree with you that tweets or rather statements would not satisfy that mens rea requirement. I have not investigated all of the indictments that Mueller has brought or the grounds on which he's brought them. I mentioned the Russian citizen simply to illustrate how much more powerful Mueller is than any US attorney who's been nominated by the President and confirmed by the Senate and just to illustrate the importance of the line between principal and inferior officers.

Steve Calabresi:                In theory, cabinet secretaries could be inferior officers because after all, the President can fire them but from the beginning of American history, we've always thought that cabinet secretaries were principal officers who had to be nominated by the President and confirmed by the Senate. In theory, deputy cabinet secretaries like Deputy Attorney General Rod Rosenstein could be argued to be inferior officers because they can be supervised and directed and fired by the attorney general or by the President.

Steve Calabresi:                In fact, Congress has … As long as there have been deputy cabinet secretaries, it has been the case that they had to be principal officers who are nominated by the President and confirmed by the Senate. The same thing applies to assistant cabinet secretaries. The assistant attorney general for the Office of Legal Counsel or an assistant secretary of state has to be nominated by the President and confirmed by the Senate. The Director of OMB has to be nominated by the President and confirmed by the Senate. Recently, Congress specified that Director of OIRA had to be nominated by the President and confirmed by the Senate.

Steve Calabresi:                If you look at the American practice from 1789 to the present day, anyone who exercises a lot of power like an assistant cabinet secretary or a US attorney has to be nominated by the President and confirmed by the Senate and it's just not question that Mueller is exercising that kind of power.

Sean Callahan:                   I'm speaking of Congress, Professor. How much money do you think Robert Mueller can spend before Congress needs to make a specific appropriation for that money?

Steve Calabresi:                I haven't thought about that question. I don't think Congress constitutionally can appropriate money to pay Mueller because what Mueller is doing is unconstitutional and illegal. The problem is I feel a little bit the boy in the story who points out that the emperor has no clothes. I really think Mueller has no clothes and that everything he's done since May 17 of last year has been unconstitutional and illegal including his referral of the Michael Cohen matter to the Southern District of New York.

Steve Calabresi:                I think Michael Cohen or the people indicted in the Southern District of New York could all argue that they've been indicted or questioned unconstitutionally because of the fruit of the poisonous tree doctrine. I think certainly Manafort can argue that in his case in the Eastern District of Virginia where he's charged with crimes that bear no relation to colluding with Russia. In essence, I think that Deputy Attorney General Rod Rosenstein has created a horrible mess whereby well over 100 people have had to incur huge legal fees and a complete disruption of their life because he appointed someone in a way that is flagrantly unconstitutional.

Steve Calabresi:                Frankly, if I were Rod Rosenstein and I realize that I created a mess as big as this, I would resign. I think that members of Congress like Senate majority leader Mitch McConnell and Speaker of the House Paul Ryan should call on Rosenstein to resign because this is really a terrible mess that affects hundreds of people, that has caused a huge amount of money and then it's distracted the President from performing his duties and it was all done in a hurry by Rod Rosenstein without adequately basing it in constitutional law.

Dean Reuter:                     We've got just one question pending then our lines are wide open but we might well be out of time by that time so let's turn now to what could be our final question. Go right ahead caller.

Bill Hodes:                          Hi. This is Bill Hodes from temporarily sunny Florida. It struck me that the arguments that you basically laid out is very powerful if you think of it as the unconstitutionality under the Appointments Clause as applied in effect using that analogy but the argument that late from the beginning on its phase, the appointment violated the Appointments Clause I think is less clear and a lot weaker. I say that because most of your argument depends upon after the fact and evaluation of what in fact has gone down.

Bill Hodes:                          I wonder whether you would accept at least as a possibility, Professor that you might say that the initial appointment on its phase, appointing him as an inferior officer might well be invalid because there was … limited to a certain thing, we don't know how far but then as he took on the office in practice or as applied to use that analogy, he turned himself into the equivalent, he exceeded his inferior officerness and became in practice, a principal officer and retroactively made his appointment unconstitutional in effect as applied.

Steve Calabresi:                Yeah. No, that's an excellent argument. Of course, to really answer that argument, one would need to see the secret memo whereby Rod Rosenstein appointed Robert Mueller to be special counsel. As I said before, I think it's outrageous in a democracy that something as important as a memo by the deputy attorney general appointing special counsel to investigate the President of the United States should be a secret document and that even federal judges should have to subpoena … even federal judges should have to order the Justice Department to cough up that secret memo.

Steve Calabresi:                It's possible, if we read the secret memo that Mueller's appointment might be constitutional. It's possible that it might be unconstitutional. I certainly agree with you that his subsequent behavior over the last year has greatly strengthened the case that the appointment was unconstitutional. I think that special counsels investigating the President of the United States are inherently unconstitutional because I think the President is the head of the executive branch and he can't authorize an investigation into himself that is impartial.

Steve Calabresi:                I think that such investigations should be done by a bipartisan Congressional committee on impeachment in the House of Representatives. I'd say in most democracies, if a major wrong was done in an election campaign, you'd have a bipartisan commission appointed and the first thing it would do is find out what wrongs were done and it would swiftly issue a public report. After that, you would begin the process of criminally prosecuting those who deserve criminal prosecution.

Steve Calabresi:                I think what Rosenstein did was the opposite. Instead of appointing a commission like the Warren Commission which investigated the assassination of President John F. Kennedy by making it a bipartisan commission, he turned this into a criminal inquiry into his boss who is by definition, prosecutor in the country. I think that's very hard to justify even on its original facts.

Steve Calabresi:                As I said before, I think the House of Representatives should maintain a standing committee on impeachments. It should be a bipartisan committee, it should have an equal number of Republicans and Democrats on the committee regardless of who holds the majority of the House and it should employ the most talented public integrity prosecutors that we can find in the nation and they should be tasked with the job of policing the President. It's that kind of committee that should have determined whether Donald Trump obstructed justice when he fired Jim Comey.

Steve Calabresi:                What is intolerable is for Donald Trump to be interrogated about the firing of Jim Comey by one of Jim Comey's closest work associates for eight years, Robert Mueller. That's just a flagrant, blatant conflict of interest. Both as a constitutional matter, as a legal matter and as an ethical matter, I find this whole thing to have been handled very badly and that's why I would call on Deputy Attorney General Rosenstein to resign.

Dean Reuter:                     We don't have any questions pending but let me ask one quick follow-up question since we have maybe 60 seconds left. I take it Professor Calabresi that you would say that even if the original mandate had been narrowly drawn in a way that makes it constitutional, that the subsequent acts by the special prosecutor have so far exceeded that mandate that the Department of Justice should have acted to remove him. Are you saying that I suppose?

Steve Calabresi:                I am saying that but I'm also saying it's very hard to know whether Mueller has exceeded his mandate because Rosenstein refuses to publish the mandate.

Dean Reuter:                     Right.

Steve Calabresi:                We don't know what Rosenstein said to Mueller when he picked him to investigate the firing of his close personal friend Jim Comey. We just don't know what it said so it's very hard to know whether it's a narrow mandate or a broad mandate. It inherently is an investigation of presidential misconduct and the constitution is quite clear that presidential misconduct is supposed to be investigated through the House impeachment process and after someone is impeached and removed, they can then be prosecuted but I think an investigation of the President by his subordinates prior to that is very constitutionally problematic.

Dean Reuter:                     Thank you very much. Let me ask [inaudible 01:01:07] if you have anything you want to say by way of wrapping up before we adjourn?

Steve Calabresi:                Just that this is an extraordinary lesson about the importance of the separation of powers and the importance of the Appointments Clause and of the limits that it imposes both on the President and the Senate and also on the bureaucracy. I just think anyone exercising substantial power has to be nominated by the President and confirmed by the Senate and that applies not only to cabinet secretaries, deputy cabinet secretaries, assistant cabinet secretaries and US attorneys, it also applies to federal court of appeals judges and federal district judges.

Steve Calabresi:                I don't think Congress could constitutionally delegate to the Supreme Court the power to pick federal court of appeals or district court judges because those officers are just too powerful to be inferior officers. I think Mueller, in his conduct to this case from quite early on has behaved in a way that suggests that he is more powerful than a US attorney, has nationwide and international jurisdiction and this is a blatant violation of the Appointments Clause.

Dean Reuter:                     Very good.

Steve Calabresi:                Thank you very much for having me on this teleconference.

Dean Reuter:                     Very pleased to welcome you here Professor. As always, thanks to Professor Steven Calabresi. I also want to thank our audience for dialing in and for your thoughtful questions. A reminder to check our website and your emails for upcoming teleforum conference calls. Until that next call, we are adjourned. Thank you very much everyone.

Dean Reuter:                     Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.