As of July 31, Special Counsel Robert S. Mueller has finally been reigned in by a District Judge for the United States District court for the District of Columbia.
Usually, a Special Counsel is appointed by the President and confirmed by the Senate. In this case – which is the first of it’s kind in U.S. history – the Special Counsel was appointed by Deputy Attorney General Rod Rosenstein after Attorney General Jefferson B. Sessions has recused himself from matters related to the Russian “collusion” investigation, since President Donald J. Trump is the subject of the investigation.
Since this is a case of first impression, there have not been any guidelines regarding the parameters of Mueller’s investigation, causing frustration among President Donald J. Trump, American citizens, and even federal judges.
Mueller has been allowed to run amuck, which he certainly has been doing. Not a single indictment supposedly related to the investigation has had anything to do with the alleged “collusion.”
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But then Mueller made a mistake. His ego got the better of him. Out of frustration, he recently took a witness to court after the witness, via his attorney, repeatedly ignored Mueller’s subpoenas. In response, the witness’ attorneys levied claims that Mueller’s “appointment violates the Appointments Clause of the U.S. Constitution on the grounds that (1) the Special Counsel is a principal officer who had not been appointed by the President upon Senate confirmation, and, in the alternative, (2) Congress had not “by law” authorized the Special Counsel’s appointment.”
The witness would eventually lose on those grounds, but an important question was raised and answered by Judge Beryl A. Howell.
According to a court memo, Mueller is to be regarded as an “inferior officer,” and thus his investigation subject to the parameters and scope of the Attorney General, or in this case, Deputy Attorney General Rosenstein.
The brief says:
“The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn.” Morrison, 487 U.S. at 671. Morrison identified four factors a court considers in determining whether an officer is principal or inferior: whether the officer is (1) “subject to removal by a higher Executive Branch official,” (2) “empowered . . . to perform only certain, limited duties,” (3) “limited in jurisdiction,” and (4) “limited in tenure.” Id. at 671 – 72.
Edmond clarified that the first of these factors — whether an officer is “subject to removal by a higher . . . official” — is by far the most important to a Court’s determination of principal – inferior status, while reformulating that factor into a broader inquiry into whether an officer’s “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” 520 U.S. at 663.
After 92 pages of legal analysis, the Judge found that Mueller fits into the category of “inferior officer,” and is to be bound in scope by the parameters set by Rosenstein.
In the short term, that is not fantastic news – Rosenstein is in on the anti-Trump scheme too. But for the first time, pressure can be applied on Rosenstein to define the scope of the investigation. If Rosenstein refuses to define the scope of the investigation, it can be exposed for the partisan which hunt that it is, and/or Rosenstein can be fired without it looking as though the President is trying to stifle an investigation into himself. Sessions, though recused, can even step into to force Rosenstein to his job.
That is the main takeaway. Neither Sessions nor Rosenstein have corralled the runaway investigation. They have not done their jobs. Now that their jobs have been defined by case law, it should be much easier.
Mueller’s plan backfired. In an attempted power grab to make witnesses comply with his subpoenas, a couple of savvy attorneys finally asked and received an answer to the question that Americans have been wondering about. What or who gave Mueller the power to do any of this?
By the way – in case there are any doubts as to Mueller’s vindictiveness, he requested that the name of noncomplying witness to be un-redacted in Judge Beryl’s memo so that his friends in the mainstream press could have a feeding frenzy. An uncooperative witness would seem guilty, and cable news would have framed him as such. That is exactly what Mueller wanted.
Instead, he is now bound by law to the will of Rosenstein, for whatever that may be worth.
Peter D’Abrosca contributed to this report.