Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
President Trump has often called Robert Mueller’s investigation a “witch hunt.” This raises real questions concerning if Mr. Mueller is politically accountable to the President. But there is another question concerning Mr. Mueller that has not been asked yet. Does Mr. Mueller even have the authority to act as an “Officer of the United States”? Without such authority, as the Supreme Court held just three weeks ago in Lucia v. SEC, he cannot invoke any part of the sovereign authority of the United States. Exactly what that means isn’t clear, but it at least includes the power to prosecute or subpoena individuals.
Our Constitution created a government that was politically accountable to the people. To do this, all executive officials are made personally accountable to the President, who is selected by the people in an election. For this reason the Constitution allows the President to remove any officer who is abusing his authority.
According to James Madison in the First Congress, it is “absolutely necessary that the President should have the power of removing from office.” According to Madison, “it will make [the President], in a particular manner, responsible for their conduct, and subject him to impeachment himself, if he … neglects to superintend their conduct, so as to check their excesses.” The President’s authority to remove Mr. Mueller has received a lot of attention, and the exact scope of that power is still debated.
But in addition to this, the Constitution, in Article II, section 3, requires that the President of the United States “shall Commission all the Officers of the United States.” A commission is a document signed by the President recognizing a person’s authority to an office. By requiring the signature of the President the Constitution emphasizes the personal accountability that the President must take over the actions of every officer of the United States.
As Alexander Hamilton wrote in Federalist 78, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”
The most famous case concerning a commission is Marbury v. Madison (1803), which noted that Mr. Marbury became an officer of the United States when the commission was signed by the President and the Great Seal of the United States was applied. Citing Marbury, Justice Alito in 2015 noted how important the action of commissioning an officer was and that the Supreme Court “certainly has never treated a commission from the President as a mere wall ornament.”
The White House Office of the Executive Clerk had no record of Mr. Mueller having received a commission from President Trump. The Department of Justice Office of Public Affairs and the Special Counsel’s office declined to answer if Mr. Mueller had a commission from the President.
If Mr. Mueller has been issued a commission by the President, as the Constitution requires for all Officers of the United States, it should be simple for him to produce it. I want to see President Trump’s signature authorizing the actions of Mr. Mueller and acknowledging President Trump’s responsibility concerning Mr. Mueller.
As Justice Alito wrote in Department of Transportation v. Association of American Railroads (2015), “Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission.” Justice Alito noted that, “There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.”
So, Mr. Mueller, can you produce your commission signed by President Trump? If not, by what authority do you claim to be an Officer of the United States given the requirements of Article II, section 3? These are questions that deserve answers.