For over a year, there has been an ongoing debate over the constitutionality of the appointment of Robert Mueller as Special Counsel. The claim is that Mueller constitutes a “principal officer” who should be nominated by President Trump and confirmed by the Senate. Instead, defenders claim Mueller is an “inferior officer” who does not require such a process. Chief Judge Beryl Howell of the United States District Court for the District of Columbia just gave Mueller an impressive legal victory in an opinion that swept aside this and two other fundamental challenges to the Special Counsel. The decision came as part of the grand jury investigation into Trump confidant Roger Stone.
While there are good-faith arguments that Mueller is no inferior officer given the sweeping nature of his mandate, I have previously expressed great skepticism of the viability of these challenges in light of the prior decision of the Court in Morrison v. Olson, which upheld the constitutionality of the Independent Counsel Act. That Act was allowed by Congress to lapse but the special counsel procedure is, if anything, stronger than the ICA since Mueller is squarely within the Justice Department and subject to its chain of command. This of course could well change with the appointment of Brett Kavanaugh to the Supreme Court. Kavanaugh is a long critic of Morrison. However, his past writings do not clearly establish that he would rule a Special Counsel to be a principal officer. However, this challenge is clearly designed to move up to the Supreme Court where Morrison is considered an endangered precedent, even before the expected addition of Kavanaugh.
Continue reading “Stone Cold: Mueller Wins Key Legal Challenge To His Authority As Special Counsel”
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Below is my column in the Hill newspaper on the calls for the impeachment of Deputy Attorney General Rod Rosenstein. While the key sponsors have indicated that they may be willing to delay this effort, many continue to advocate for a vote on articles of impeachment. 
CNN landed a major news coup with the airing of one of the conversations that Michael Cohen secretly taped with President Donald Trump. The tape is not the best in terms of the audio quality but it contains some troubling portions. Notably, this was clearly not a telephone conversation but sounds like an actual meeting where Cohen is sitting and meeting with Trump. I just 
Below is my column in The Hill newspaper on the lingering questions left from the Strzok testimony. While it may seem like a thousand years after Helsinki and the Cohen tape, the testimony of Strzok was shaped by highly dubious instructions from the FBI not to answer core questions. It is highly doubtful that a majority of these refusals would be upheld under judicial review — starting with the first question asked of Strzok.
I have previously questioned the environmental and economic sense of President Donald Trump pushing the United States into greater coal consumption with the rest of the world developing alternative energy sources. We seem to be pushing a buggy-whip economy as the world and markets pass us by. My greatest concern is the hostility shown by the Trump Administration to new energy sources. A touchstone of the industry is Levelized Cost of Energy Analysis (LCOE) which was used by investment bank Lazard to evaluate the current costs and prospects of different energy investments. It found (as we have previously discussed) that 
FDA Commissioner Scott Gottlieb may have come up with the greatest tagline since “White Men Don’t Jump.” Gottlieb has announced that the agency is considering blocking the use of the term “almond milk” because “an almond doesn’t lactate.” 
Below is my column in The Hill newspaper on the most recent indictment of Russian military intelligence figures for hacking the computer systems linked to the Clinton campaign and the Democratic party. Once again, the indictment seems straightforward in what is says and what it does not say. Yet, the Washington spin machine quickly put forward highly distorted accounts, including media reports that worked hard to avoid acknowledging obvious elements of the indictment.
Last week, the 
Below is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller. It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.
Below is my column in the Hill newspaper on the recent reports of how Deputy Attorney General Rod Rosenstein was angry over his treatment by the Trump White House and wants Mueller to “vindicate” him. I have said for over a year that Rosenstein should recuse himself if Mueller is seriously investigating the firing of former FBI Director James Comey as an act of obstruction or some other crime. These reports magnify, in my view, those conflict concerns.
There was a curious shift that occurred in the 24 hours leading up to the decision of the Supreme Court in