CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, July 18, 2018

Calabresi on Special Counsel

The defenders of the constitutionality of Robert Mueller's appointment as Special Counsel argue that he is an inferior officer of the United States. The Appointments Clause, however, requires that Congress by Law vest the power to appoint inferior officers in the President, the Courts of Law, or the Heads of Departments. Congress has never by Law vested in the Attorney General the power to appoint an inferior officer Special Counsel like Robert Mueller. Mueller's appointment as an inferior officer is thus unconstitutional and every action he has taken since May 17, 2017 is therefore null and void. Congress has by law vested in the Courts of Law the power to appoint inferior officer Interim U.S. Attorneys. 28 U.S.C. 546. The absence of such a law authorizing the Acting Attorney General with the authority to appoint Mueller is thus stark proof that Mueller's appoint is unconstitutional.

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