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”
Below is my column in USA Today on the most recent claim that the tweets of President Donald Trump concerning the Special Counsel are acts of obstruction. Once again, there is a blind eagerness to claim a prime facie criminal case against Trump. However, the implications of such a charge are enormous. It would mean that a subject or target of an investigation could be criminally charged for publicly denouncing the prosecutors or their investigation. While it is certainly true that a president is not just any investigatory subject and has powers that do mean a menacing meaning to such tweets, it would radically extend the scope of obstruction into more ambiguous areas. In the end, this is still the exercise of free speech in this context.
In a major building block for the prosecution of former Trump campaign head Paul Manafort, prosecutors put on the stand his accountant who demanded a grant of immunity because he 
Lost in the mix of Manafort and other news, there is a significant development in Special counsel Robert Mueller’s investigation. Mueller has referred a number of cases to the Southern District of New York for possible prosecution, including reportedly case involving longtime Democratic lobbyist Tony Podesta and his work for his former firm, the Podesta Group and former Obama White House counsel Greg Craig, a former partner at law firm Skadden, Arps, Slate, Meagher & Flom LLP. It is not clear if charges would emerge from these cases but the referral further decentralizes the investigation.
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Below is my column in the Hill newspaper on the implications of Michael Cohen accusing Donald Trump of lying about his lack of prior notice of the meeting at Trump Tower with Russians offering dirt on Hillary Clinton. Cohen’s allegations present an obvious risk not only to Trump but himself. What is most striking is that Cohen is alleging that specific people were in the room during Trump’s briefing and his approval of the meeting. That is an unnecessary risk to take if you are lying about the meeting as opposed to alleging a one-on-one conversation with Trump. Thus far, no one has corroborated his story while 
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.