Day 516 Tuesday June 19, 2018 1,062 Days to Go
I’ve found legal stuff and civics to be pretty boring stuff. However, with the advent of Mr. Trump the situations he creates have made this stuff much more interesting.
But first a shout out to Time magazine for it’s cover with the note “Diplomacy by Impulse.”
Okay, the other day I heard George Will make an argument on Bill Maher’s show that the special counsel is unconstitutional and so then would be everything he does. My conclusion was “This could be bad.” (Brilliant, I know.) So I typed a search term or two into google and got an article written by George Conway, husband of one KellyAnne. I remember Rachel mentioned this article but her take was “Who’s side is he on?” because the article seemed to defend Mueller and not the Republican view. I didn’t really understand it any further than that.
But now I do!
Conway (the husband) was responding to an article in the Wall Street Journal by Stephen Calabresi of the Federalist Society. Let’s take a moment to make sure we know who and whom Stephen and the Federalist Society is and are. According to wikipedia the Federalist Society is made up of conservative and libertarian legal beagles. They claim to be interested in interpreting the Constitution as it was originally intended. This is called origanalism and the folks who subscribe to it originalists. This group is the one, as far as I know, who have suggested all the justices that Trump is suggesting and McConnell is trying to ram through the Senate. They suggested Gorsuch. So they are a bunch of nut bag right wingers. Their heros? Anthony Scalia and Ted Cruz.
Calabresi went to Yale Law, clerked for Robert Bork and wrote speeches for Dan Quayle. He is the co-founder of the Federalist Society.
So Calabresi wrote a paper that said Mueller wasn’t constitutionally appointed and hence everything he does should be thrown out. George Will seems to think this is correct. KellyAnne Conway’s husband disagrees. In fact, he shredded Calabresi’s arguments, of which their are four (if I counted correctly):
1 – The special counsel is a Principal Officer as outlined in the Constitution and as such has to be approved by the Senate. He wasn’t. Therefore everything he does is out the window.
This gets into a lot of definitions of what the Constitution says about what a Principal Officer is and is Mueller a Principal Officer? We’ll discuss below. This references what is known in the Constitution as the Appointments Clause (Article II, Section 2, Clause 2).
2 – Mueller is a Principal Officer because no one is supervising him.
3 – There is an Independent prosecutor law, that has expired, but the argument goes that Mueller is really an independent prosecutor, operating outside of the Executive branch and that has been shown to be infringing on the powers of the president and therefore he is operating outside of the law and the Constitution and therefore everything he does is illegal.
Hum, there really were only three arguments. All of them unfounded and silly. But Conway goes through each one and shows why legally they don’t stand up. And whom does he site as supporting his claims? Why Anthony Scalia, the original originalist, the darling of the Federalist Society, and case law, and the Constitution, and laws passed by Congress, and opinions by the Supreme Court. But other than that…
Okay, here’s an overview of Mr. Conway’s arguments:
The Appointment Clause of the Constitution speaks to how Principal officers get appointed. Typically, in writing from the president and vote by the Senate, but not always. There are many cases where the president appoints when the Senate is in recess, or of judges being appointed without the president’s writing to the Senate, etc. etc. etc.
To be a Principal Officer you need to be reporting to the president or be unsupervised or have no one know what you are doing.
There is also a reference to “inferior officers” by the Constitution and they don’t go through the whole Senate thing.
Mueller according to Conway is an “inferior officer” because he reports to Rosenstein and Rosenstien has told Congress that he is aware of what Mueller is doing and has approved it.
Calabresi has tried to say that Mueller is like the prosecutors around the country and they are principal officers. Nice argument, except they aren’t. Who says so? Why Anthony Scalia. And a bunch of case law, and the Constitution, but other than that…
Then Calabresi tries to say Mueller is an Independent Prosecutor. This was a position that Congress let expire, after a certain Independent Prosecutor wandered around for years trying to find something to nail Bill Clinton on. He finally got him for six blow jobs.
To be an Independent Prosecutor you have to be outside the three branches of government. Robert Mueller isn’t.
Next? Well, Calabresi babbles on. Trump tweets nonsense about it. But other than that?
Well, is Stevie D nodding his head up and down over at Fox and Friends?
1,062 Days to Go
PS Is there light at the end of the tunnel?
Leave a Reply