- 1 Unconstitutional
- 2 The Current Investigation
- 3 Democrat Hypocrisy
- 4 Likely Outcomes
- 5 Sources
Expiration of the Ethics in Government Act
The current Mueller investigation is unconstitutional. The legislative authority for a Special Counsel/Prosecutor expired in 1999 when Congress declined to renew the 1978 Ethics in Government Act.
|“|| "In 1999, Congress allowed the 'independent counsel' provisions of law to expire. Upon the expiration of the law in June of 1999, no new 'independent counsels' or 'special prosecutors' may be appointed by a three-judge panel upon the application of the Attorney General. The Attorney General retains the general authority to designate or name individuals as 'special counsels' to conduct investigations or prosecutions of particular matters or individuals on behalf of the United States. Under regulations issued by the Attorney General in 1999, the Attorney General may appoint a 'special counsel' from outside of the Department of Justice who acts as a special employee of the Department of Justice under the direction of the Attorney General. The Attorney General, however, may also appoint an individual as a special counsel, and may invest that individual with a greater degree of independence and autonomy to conduct investigations and prosecutions, regardless of any 'special counsel' regulations, as Attorneys General did in 1973, 1994, and 2003. In 1973, Attorney General Elliot Richardson named Archibald Cox to be the 'special prosecutor' for the 'Watergate' investigation; in 1994, during an earlier expiration of the independent counsel provisions of law, Attorney General Janet Reno named a 'regulatory' independent counsel Robert Fisk to investigate allegations concerning the matter known as 'Whitewater'; and in 2003, Attorney General Ashcroft recused himself from the investigation of the leak of the identity of a CIA agent, and Deputy Attorney General Comey named U.S. Attorney Patrick Fitzgerald to be special counsel 'with all the authority of the Attorney General' to pursue that matter."
-Jack Maskell, Congressional Research Service
While the Attorney General in 1999, Janet Reno, proclaimed the ability to appoint special counsels through the Department of Justice's Attorney General, that ability was supposed to lack the legislative, statutory authority and independence of Congress-appointed independent counsels. Ironically it was Reno's own corruption that led to Congress' decision to let the Ethics in Government Act authorizing special counsels expire, since Reno was refusing to appropriately enforce the Act and appoint a Special Counsel to investigate the Clinton administration. As such, the usurpation of special counsel appointment authority powers by a corrupted Attorney General, after Congress let those powers disappear upon realizing she was misusing them, was suspect at best. Reno herself was accused by Congress of changing her interpretation of the Special Counsel Act to obstruct justice.
|“|| "C. Attorney General Reno Changed Her Interpretation of the Independent Counsel Act
To understand how the Attorney General was able to consistently refuse to appoint an independent counsel in the campaign financing investigation, it is necessary to understand her interpretation of the Independent Counsel Act. In addition, it has to be pointed out that her interpretation has not been consistent. Attorney General Reno made numerous appointments under the discretionary provision of the statute that she never could have made under her present day interpretation. Her first articulation of her revised analysis was in response to a March 1997, Senate Judiciary Committee request that she appoint an independent counsel in the campaign finance matter. Reno responded 1 month later, declining to request the appointment of an independent counsel. In the response, she laid out several points about the Independent Counsel Act itself, upon which her refusal was based.
Appearance of a Conflict Versus Actual Conflict
The key to Reno's arguments was her interpretation of the statute itself. If one were to follow the simple language of the statute, it would have been difficult for Reno to explain why she could not use the discretionary provision of the Act to request an independent counsel. Reno needed to interpret the statute in such a way that she could argue that the Act did not permit her to invoke the discretionary clause. Breaking with her own previous interpretations on the discretionary provision of the Act, Attorney General Reno stated in her letter to the Senate Judiciary Committee that `[u]nder the Act, I must conclude that there is a potential for an actual conflict of interest, rather than merely an appearance of a conflict of interest.' In the past, she had requested the appointment of independent counsels based on an appearance of a conflict."
-Committee on Government Reform, House of Representatives
Reno did not just begin her corruption during the Clinton era. She also, while Dade County State's Attorney from 1978-93, pioneered a since-discredited practice of engineering false evidence against innocent people, accusing them of child abuse. Several people such as Bobby Fijnje were falsely accused; justified only after years of false accusations.
As such, the unconstitutional DOJ guidelines were authored by an utterly corrupt Attorney General who protected the Clinton administration by refusing to enforce Congress' Ethics in Government Act requiring the appointment of a special counsel and inconsistently interpreted the statute to do whatever she wanted. Reno falsely accused innocent people and tried to wreck their lives using the power of the courts.
DOJ Special Counsels vs. Independent Counsels
And what independence are Special Counsels supposed to have less of? Independence from the authority of the Attorney General. Lacking legislative authority, a special counsel such as Mueller should be directed almost entirely by the Attorney General (now William Barr).
|“|| "The Independent Counsel Act expired June 30, 1999. 28 U.S.C. Sec. 599. However, soon after the expiration of the Act, the Department of Justice enacted regulations allowing the Attorney General to appoint a special counsel, who would be authorized to investigate and prosecute matters when the Attorney General concludes that extraordinary circumstances exist such that the public interest would be served by removing a large degree of responsibility for a matter from the Department of Justice. 28 C.F.R. Sec. 600 et. seq. (1999).
On June 30, 1999, the Attorney General and many senior level political appointees at the Justice Department could breathe a collective sigh of relief. On that day, the Independent Counsel Act expired.After holding hearings, Congress decided not to reauthorize the Act. Therefore, the Department of Justice could no longer be called upon to implement the Act in the campaign finance investigation. After the Act expired, the Attorney General assured Congress and the public that the Department had instituted regulations allowing for a `special counsel.' A special counsel was supposed to be similar to an independent counsel, but without the statutory authority or independence. It came as no surprise that when Reno's new Supervising Attorney, Robert Conrad, determined that a special counsel should be appointed to investigate Vice President Gore, Reno declined."
-Committee on Government Reform, House of Representatives
The Bush/Comey Era
There had been no Special Counsel since 2003 when Attorney General John Ashcroft recused himself from an investigation into the Bush administration, and appointed James B. Comey, Jr. as Special Counsel to oversee the investigation into the Bush administration. Not until Rosenstein appointed Mueller in 2016 without either legislative or executive basis had there been a Special Counsel.
The Current Investigation
As part of the executive branch, both Mueller and Rosenstein are supposed to be accountable to Donald Trump. If Congress wanted to investigate Trump, it should do so via legislation or committee authorizing special investigation as it did during the Nixon era with the Senate Watergate Committee.
Mueller's False Authority
Democrats are currently challenging the appointment of Matthew Whitaker as Attorney General, claiming that such appointment is unconstitutional, because they know that Mueller is supposed to be accountable to the Attorney General. They furthermore claim that Mueller should not be considered a 'principal officer' requiring Senate approval since he was appointed by an inferior officer, Deputy Attorney General Rod Rosenstein, instead of the previous Attorney General Jeff Sessions.
The problem with arguments such as that made below by the New York Times is obvious, however. The Deputy Attorney General lacks authority to appoint a special counsel, and no special counsel has ever been appointed by a Deputy Attorney General. The Constitutional legitimacy for a special counsel to be appointed after Congressional statutory authority expired in 1999 was on shaky grounds to begin with. The only way it didn't provoke Congressional opposition at the time was by promising that the special counsel would be strictly under the control of the Attorney General; lacking the statutory authority and independence of past independent counsels. What Democrats now want to do is sneakily have an inferior officer appoint Mueller to claim that he should have even more authority and power than if he'd been appointed by a principal officer (the Attorney General), on par with the power of independent counsels--which again, expired in 1999 after Congress refused to renew it, in part due to then-Attorney General Janet Reno's corruption to begin with.
|“|| "He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid."
-Neal M. Katyal & George T. Conway III, New York Times
All of which is beside the point. Rosenstein was only able to appoint Mueller as a Special Counsel because Sessions recused himself--thus making Rosenstein the Acting Attorney General. Rosenstein was only able to appoint a Special Counsel by being an Acting Attorney General, effectively using the authority of the Attorney General's office, thereby making Mueller himself a principal officer who was appointed without Senate approval.
|“|| "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."
Thus, any lawsuit questioning Whitaker's appointment without Senate approval necessarily implicates the Constitutionality of Mueller's appointment, who was also appointed without Senate approval. And Mueller, contrary to the New York Times' claims, was a principal officer since he was appointed by Rosenstein as Acting Attorney General.
Matthew Whitaker was appointed on the basis of the Federal Vacancies Reform Act of 1998, which authorizes the President to appoint someone for 210 days in a federal role:
|“|| "With that law, Congress authorized the president to appoint someone for 210 days in a federal government role, if the person:
Has worked at the same government agency for at least 90 days preceding the original office holder’s “death, resignation, or beginning of inability to serve” Receives pay equal or more than what’s known as the GS-15 pay scale, a range that currently goes from $100,000 to $130,000 That’s it, and there’s no question Whitaker meets those requirements. He became Sessions’s chief of staff in October 2017 and was at the GS-15 pay level."
-Alex Ward, VOX
Democrats ultimately argue that Whitaker's appointment is not valid, because he wasn't confirmed with the advice and consent of the Senate. However, many principal officers have been confirmed before without that advice and consent, through what is known as recess appointments. The Senate has been blocking Trump's ability to appoint officials such as Whitaker through an arguably unconstitutional motion known as pro forma, where the Senate stays perpetually open so that Presidents can never provide recess appointments.
|“|| "It has been nearly eight years since the United States Senate officially recessed - a streak aided by the practice of holding so-called pro forma sessions every three days throughout every adjournment. Those sessions - which consist of nothing but gaveling in and out and where, by unanimous consent, no business is conducted - serve a single purpose: to deny the president of the United States the recess appointment power, which is a constitutionally authorized power to temporarily install nominees to executive and judicial posts without Senate advice and consent. President Bill Clinton used the recess appointment power 139 times, including 96 full-time positions. President George W. Bush used it 171 times, including 99 full-time positions. But recess appointments under Bush screeched to a halt in his final two years in office, after Democrats took control of the Senate and, for the first time, implemented pro forma sessions to avoid an official recess."
-Phil Kerpen, Townhall
So if the Senate were to recess for a single day, allowing Whitaker's appointment through a recess appointment, his appointment would suddenly be valid, under such logic? There would still be no formal Senate vote on his appointment. The recess appointment power is clearly Constitutional under Article 2, Section 2:
|“||"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."||”|
But the Senate is refusing to recess, so what could be done? Trump can actually force Congress to adjourn, and then provide temporary appointments, per Article 2, Section 3:
|“||"He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States."||”|
By simply forcing Congress to take the recess they should be taking anyway, then temporarily appointing Whitaker, who could then remove Mueller, all objections based on Constitutionality would be silenced.
Ultimately, Mueller is using powers that should not be granted to him, that expired in 1999 and were not renewed by Congress. As such, any actions he has taken for discovery could be disqualified, in the same way that police who use unlawful methods (e.g. unlawful search and seizure) can have evidence disqualified as impermissible via the Exclusionary Rule.
Mueller is currently protected by judicial tyranny that has intervened to stop Trump's executive orders and Congressional legislation such as the Defense of Marriage Act. Irrespective of Congress, the runaway judiciary will doubtless intervene to protect Mueller should he be fired by Justice Department officials or Trump himself, by simply declaring that his removal is unconstitutional. As such, a modern Judiciary Act such as the one I have recommended is necessary to limit the scope of judicial jurisdiction.
Judicial jurisdiction, like Presidential jurisdiction (Article 2, Sec. 3), should stop where legislation begins, consistent with Article 6 of the U.S. Constitution, which clearly states that "This Constitution, and the Laws of the United States... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby..."
|“|| "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
-Article 2, Sec. 2, Clause 2
For an extensive overview of the problems with the doctrine of Judicial Review, see chapters 5 and 17 in "Defending Conservatism." Needless to say, however, Marbury v. Madison did not justify Judicial Review, and oversight by the Judiciary of either the Legislative or Executive Branches. With Marbury, the Supreme Court Justices refused to intervene in a dispute involving appointment of federal judges; refused to force Secretary of State James Madison to deliver the appointments of President John Adams to the judges in question. Rather than justifying judicial oversight of the Executive and Legislative branches, Marbury actually showed the Court lacks jurisdiction to dictate what is and isn't Constitutional to the other branches.
Any removal of Mueller should, ideally, occur only after passage of a Judiciary Act restricting judicial jurisdiction from overriding legislative and executive decision-making.
The Democrats hacked Russia before Russia hacked them. The Obama administration was caught spying on 35 world leaders and hacking the Google and Yahoo servers to steal hundreds of millions of global emails. I guess it was alright for the Democrats to hack Russia but not the other way around?
The Wikileaks emails showed very real corruption on Hillary's part. Hillary was colluding with CNN's Donna Brazile, the former DNC head, to steal the debate questions, and with the DNC to keep Bernie Sanders from winning. Maybe if the Obama administration honored our own Whistleblower protection laws, Snowden and Assange wouldn't have been forced to seek asylum in Russia in the first place.
Podesta and the Russians
Hillary Clinton's campaign manager, John Podesta, was himself involved in corruption with the Russians, as was Mark Warner, the top Democrat on the Senate Intelligence Committee.
As of December 11th, 2018, I expect the following to occur.
- If Donald Trump decides to fire Mueller, he will be stopped by the Judiciary, which will declare the firing unconstitutional on the basis of obstruction of justice while blocking Whitaker's appointment. Since it appears unlikely he will pass a modern Judiciary Act in time to prevent judicial overreach (by January 3rd before the new Congress is seated), this will result in a showdown between the President and the Judicial branch in his final two years of office. It appears Democrats will obstruct Whitaker's appointment as long as possible, and may even get away with blocking the appointment for Trump's remaining two years, unless he adjourns Congress forcibly and appoints Whitaker as a recess appointment, who could then remove Mueller. Even then, if acting according to every legal technicality when appointing Whitaker, it is likely Democrats will simply pay judges to obstruct Whitaker's appointment by abusing the legal process, barring the passage of a Judiciary Act.
- Democrats will spend the next two years filing non-stop impeachment articles against Trump, calling for investigation after investigation. Although they clearly lack the 67 votes needed in the Senate to successfully impeach him (they have just 47, and would need 20 Republican votes), they want to win the battle of public opinion. Their goal will be to tarnish his reputation and the Republican Party's image over the next two years, with an eye on larger seat gains in 2020.
- Because impeachment is the only valid tool for removing a President in office, Democrats will wait to go after Trump until he is out of office, perhaps looking to indict him. Unless the evidence from Mueller's investigation can be declared inadmissible and he is clearly removed in a way that renders the results moot, that evidence will likely be used against Trump upon completion of his presidency. In particular, Democrats will target him over the hush money payments made and campaign tax evasion (tax evasion being the issue used to target Manafort and Cohen).
- Maskell, Jack (2013, June 20). "Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress." Congressional Research Service.
- Suro, Robert (1999, June 30). "As Special Counsel Law Expires, Power Will Shift to Reno." Washington Post.
- Committee on Government Reform (2000, December 13). "House Report 106-107: Janet Reno's Stewardship of the Justice Department: A Failure to Serve the Ends of Justice." House of Representatives.
- (2002, April 28). "[http://www.freerepublic.com/focus/news/674364/posts Reno Owes the Public Answers." St. Petersburg Times.
- Helsel, Phil (2017, May 17). "'Special Counsel' Less Independent Than Under Expired Watergate-Era Law." Washington Post.
- Lichtblau, Eric (2003, December 31). "Special Counsel is Named to Head Inquiry Into Leak." New York Times.
- Katyal, Neal M. & Conway III, George T. (2018, November 18). "Trump’s Appointment of the Acting Attorney General Is Unconstitutional." New York Times.
- Electronic Code of Federal Regulations (2018, December 10). "Title 28: Judicial Administration, PART 600—GENERAL POWERS OF SPECIAL COUNSEL." Government Publishing Office.
- Ward, Alex (2018, November 21). "The Strongest Case For--And Against--Matthew Whitaker's Appointment." VOX.
- Kerpen, Phil (2018, November 16). "Senate Republicans Are Blocking Trump Appointments." Townhall.
- Madison et. al. (1787). "The Constitution of the United States: A Transcription." National Archives.
- Jurkowski, Stephanie (2017, June). "Exclusionary Rule." Legal Information Institute.
- "This Day in History: February 24, 1803." History Channel.
- Ball, J. (2013, October 25). "NSA Monitored Calls of 35 World Leaders After US Official Handed Over Contacts." The Guardian.
"NSA Secretly Tapped Google, Yahoo Data Centers Worldwide, New Report Claims." FOX News.
- "Donna Brazile Leaves CNN After Leaks Reveal Campaign Collusion." Snopes.org.
- Atkisson, Sheryl (2018, February 11). "Democratic Ties to Russia are Ample, and Often Ethically Dubious." The Hill.
- Singletary, Michelle (2018, August 22). "Paul Manafort. Michael Cohen. How Tax Fraud Took Them Down." Washington Post.