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Is Robert Mueller an Officer of the United States?

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.

Reader Discussion

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on July 17, 2018 at 09:55:57 am

Mueller's a caricature of what unlimited power looks like when it's unharnessed from responsibility. He's to the Department of Justice what MAD Magazine's Alfred E. Neuman was to good judgement, a complete idiot posing as a paragon of intelligence.

To avoid confronting the real criminals and their real crimes Mueller's looking at the wrong people in the wrong places and making himself look the vindictive fool in the process. He should read one of Neuman's aphorisms,"You can be on the right track and still get hit by a train!"

As for Devin Watkins commentary, I say Mueller may not be an Officer, but he's certainly a Gentleman.

Just ask the Democrats.

Just ask Mueller's pals, Comey and Rosenstein, the guys who got him his terrific new job.

Pillars of Principle, those three; the Athos, Porthos and Aramis of jurisprudential ethics.

None finer since Patrick Fitgerald, the last Democrat-incited Special Counsel to chase media madness down a Democrat rat hole, to the country's detriment and the destruction of an honest man.

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Pukka Luftmensch
on July 17, 2018 at 10:40:52 am

Does this propose then that Mr. Mueller, with his seemingly unfettered scope of investigative and prosecutorial discretion, is operating as an inferior officer, not subject to the advice and consent of the Senate?

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Paul Binotto
on July 17, 2018 at 11:22:12 am

I think there are some good arguments either way on if Mr. Mueller is a principal officer. I tend to think the dividing line between the two isn't as squishy as "how important" the duties are. The "do you have a superior officer?" is the much more important question for that. In this case Mr. Mueller does have a superior (rod rosenstein if not AG Sessions). So my argument (above) assumes that Mr. Mueller is an inferior officer that does not need senate confirmation.

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Devin Watkins
on July 17, 2018 at 12:02:51 pm

Devin,

Thanks for the reply. You are likely quite right in your assessment here, and I think you are unquestionably right that the SC constitutes an officer, principal or inferior, under Lucia, although I do tend to think perhaps greater impartiality would be achieved if a nominee were subject to confirmation hearings. Conversely, however, it’s not hard for me to see why politically, Senators would wish to distance themselves as far as possible from this selection process.

I have strong misgivings about the appropriateness of the very existence of Special Counsel regardless, as I do not think it possible to prevent SC investigations, no matter how initially impartial the SC at the onset, from quickly devolving into a political debauchery; and the history of SP’s or SC’s, in my view, seems to bear this out.

While the framers can't be said to have had a crystal ball to foresee the eventual need for a SC, nor can they be said to have been naïve about human nature, (they were probably less so than post-moderns), as to not have fully contemplated the adequacy and it’s potential for abuse, of the remedy they did devise for holding a sitting President and his/her Administration accountable; further evidence, I think, that the SC is purely a political contrivance.

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Paul Binotto
on July 17, 2018 at 12:29:45 pm

Interesting re: Senate confirmation & reduction of partisanship.

Question:

If we are to involve the legislative in the determination of Executive (or Judicial) misconduct, why not simply use that mechanism previously provided for by COTUS? - i.e., Impeachment. Theoretically, it ought not to be any MORE partisan than is the Special Prosecutor, it affords a vicarious accountability to the People, and is more likely to constrain an overzealous / partisan Special Prosecutor from descending into a Kafkaesque investigation and prosecution.

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gabe
on July 17, 2018 at 12:39:58 pm

Professor Steven Calabresi made the case in May that Mueller's appointment was unconstitutional because he is a "principal officer" not appointed by the President and confirmed by the Senate. How does Watkins' argument advance or detract from Calabresi's?

https://lawandcrime.com/politics/federalist-society-co-founder-says-muellers-investigation-is-unconstitutional/

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Pukka Luftmensch
on July 17, 2018 at 12:47:42 pm

Thanks, Mr. Gabe,

To answer your question, I quite agree, and that's what I was alluding to in my last paragraph.

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Paul Binotto
on July 17, 2018 at 15:04:59 pm

If whether one has a "superior officer" is dispositive would it not be the case that US Attorneys (each of whom is an inferior officer, responsible to the President and the Attorney General) would not require Presidential appointment and Senate confirmation? Yet, they do require such.

Furthermore, Mueller has more authority than the US Attorneys, who, unlike Mueller, must obtain DOJ approval before initiating major investigations or prosecutions, especially those which are politically-sensitive.

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Pukka Luftmensch
on July 17, 2018 at 16:52:42 pm

US Attonries do not require senate confirmation always. They can in some situations be appointed by the court. So they are an inferior officer who usually (but not always) requires senate confirmation. Just having senate confirmation doesnt mean they are a principal officer (although all principal officers need it).

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Devin Watkins
on July 17, 2018 at 16:55:01 pm

Its a totally different argument. Neither adds or subtracts from the other.

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Devin Watkins
on July 18, 2018 at 14:46:41 pm

I don't think you're correct that US Attorneys can be appointed by the courts. But the point stands that the Constitution allows (but does not require) Congress to allow department heads, or the President, to appoint inferior officers without Senate approval. Congress has chosen to require USAs to be nominated by the president and confirmed by the Senate.

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brad
on July 18, 2018 at 18:42:31 pm

I suggest you read 28 U.S.C. § 546 (d): "If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court."

This was signed into law on Nov. 10, 1986 by President Reagan in the "Criminal Law and Procedure
Technical Amendments Act of 1986" https://www.gpo.gov/fdsys/pkg/STATUTE-100/pdf/STATUTE-100-Pg3592.pdf#page=26

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Devin Watkins

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.