Top legal expert explains why Robert Mueller’s appointment may have been illegal in the first place

“Show me the man and I’ll find you the crime,” said former Soviet Secret Police Chief Lavrentiy Beria, a Russian today’s liberals are undoubtedly quite fond of.

Robert Mueller was supposed to be a bipartisan, unbiased investigator who would get to the bottom of Russia’s supposed role in the 2016 election to the satisfaction of both sides of the political spectrum. Instead, he has turned out to be a partisan hack-job seemingly hellbent on finding some sort of “crime” – and any “crime” will do, no matter how far beyond the original parameters of his appointment he needs to reach.

Which is understandably drawing the ire of President Trump.

But one prominent legal expert makes a convincing argument that the president might not need to even consider firing Mueller, because he should never have been appointed in the first place.

Pepperdine University School of Law professor Douglas W. Kmiec believes Mueller was unconstitutionally and illegally appointed to his post, according to a report by LawNewz.com.

“The president has a point, this is a complex idea. He is basically saying, hey look, something doesn’t seem right, and he might be right,” Kmiec told LawNewz. Instead of inquiring about pardons, Kmiec believes Trump should be questioning the appointment’s constitutionality.

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Here are his three main arguments:

1.) Lack of oversight

If Attorney General Jeff Sessions has recused himself and Deputy Attorney General Rod Rosenstein has, for all intents and purposes, done the same, who is Mueller reporting to? If the answer is nobody, Kmiec contends that the Constitution requires Senate confirmation, like any other executive branch appointee.

2.) Presumption of guilt

Kmiec believes Mueller’s appointment comes dangerously close to indicting President Trump, who technically cannot be indicted and has a right to be presumed innocent in the first place.

“The special counsel has not formally indicted Trump,” Kmiec writes. “But given Comey’s hair-trigger assumption that Trump was up to no good, and the way the special counsel process defines the president as a wrongdoer before any wrong is established, the investigation itself is arguably equivalent to an unconstitutional indictment.”

3.) Lack of “specific and credible” evidence to even open the investigation

Lawnews writes:

This one requires a little back story. In 1988, the U.S. Supreme Court took up a case in which Assistant Attorney General Ted Olson challenged the constitutionality of Independent Counsel Act. Ultimately, the court found it did not conflict with the separation of powers. However, the law expired in 1999, and the new regulations have never faced rigorous legal scrutiny, and if they did, they probably wouldn’t meet constitutional muster.

“Under the expired law, independent counsels were appointed by a special three-judge panel of the U.S. Court of Appeals, but only after the attorney general conducted a preliminary investigation based on ‘specific and credible’ information about alleged wrongdoing by the president,” Kmiec wrote. Kmiec contends that none of these careful steps exist in the current regulations, and “there are no signs that in the wake of Sessions’ recusal, a constitutionally sufficient process triggered the Mueller appointment.”

Op-ed views and opinions expressed are solely those of the author and do not necessarily represent the views of BizPac Review.

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Scott Morefield is a news and opinion columnist for BizPac Review. In addition to his work on BPR, Scott's commentary can also be found on Townhall, TheBlaze, The Hill, WND, Breitbart, National Review, The Federalist, and many other sites, including A Morefield Life, where he and his wife, Kim, share their marriage and parenting journey.
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