If Cuccinelli is wrong, then so was Mueller

As reported by Fox News, U.S. district judge Randolph Moss "ruled Sunday that one of the Trump administration's top immigration officials, Ken Cuccinelli, was unlawfully appointed to his post."

The Fox News article is a bit off.  The unlawfulness is not because of a statute, as the article claims, but because of the Constitution itself — specifically, the Appointments Clause (U.S. Constitution, art. II, §2, cl. 2).  This is set forth in the first paragraph of the judge's ruling.

The position to which Cuccinelli was appointed, as a matter of constitutional law, is that of a superior officer — therefore the appointment to be lawful must — must — be approved by the Senate.  Because the Senate did not approve the appointment, the judge (rightly) concludes, the appointment is unlawful.

The judge rightly concludes that such agency actions are to be set aside as either void from the beginning or voidable by a judge (p. 50–53).

But this is exactly the same argument that two law professors — Steven G. Calabresi and Gary Lawson — make in their law review article titled "Why Robert Mueller's Appointment as Special Counsel Was Unlawful."

Lest we forget, Mueller, at the time of his appointment, had no position in government.  The power he wielded was greater and wider in scope than, or at the very least as great as, any U.S. attorney.  (Indeed, the law professors describe the power of a Mueller-style special counsel as being "supercharged" [p. 55]).  U.S. attorneys are superior officers, and in order for their appointments to be lawful, they need Senate approval — which did not happen in Mueller's case.

Similarly, the professors correctly point out, Mueller was not an inferior officer.  They write:

Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute — and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

The professors stop short of discussing whether the actions taken by Mueller are void.  But applying Judge Moss's rationale, it appears they would be — unless, perhaps, we have two systems of justice.

Mueller's team might have one dodge left: to claim it was all counterintelligence and that the prosecutions were ancillary and tertiary.  (U.S. attorneys do not "do" counterintelligence; they prosecute crimes.)

In this regard, the exchange between Senator Lindsey Graham and Inspector General Michael Horowitz is telling.

The underlying issue the senator was exploring is whether a counterintelligence investigation is legitimate if it does not seek to protect Americans, including the president-elect and later the president, from the foreign intelligence activity.  After all, counterintelligence investigations are not criminal investigations, but directed at countering the activities of foreign intelligence services.

Lindsey Graham: (14:01) There's a mountain of misconduct. Please don't ignore it. So my point is, if this is a counterintelligence investigation, who are they trying to protect? Who should they be trying to protect?

M. Horowitz: (14:16) Well, if it's the threat outlined in the friendly foreign government information, you would be looking to protect the election process, which would include --

Lindsey Graham: (14:27) The candidate?

M. Horowitz: (14:28) The campaign, the candidate, and the American people…

Lindsey Graham: (14:57) What would you call a counterintelligence investigation that never had a protective element?

M. Horowitz: (15:07) I'm not sure. Sorry, Mr. Chairman.

Lindsey Graham: (15:09) Okay. If without eventually trying to protect the entity being influenced, is it legitimate?

M. Horowitz: (15:22) It would depend on each fact and circumstance.

Horowitz had the opportunity to achieve greatness but managed to evade it.  "It would depend on each fact and circumstance," indeed!  No, it wouldn't.

Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).  He is also a former law professor and is the author of Comparative Contract Law.

As reported by Fox News, U.S. district judge Randolph Moss "ruled Sunday that one of the Trump administration's top immigration officials, Ken Cuccinelli, was unlawfully appointed to his post."

The Fox News article is a bit off.  The unlawfulness is not because of a statute, as the article claims, but because of the Constitution itself — specifically, the Appointments Clause (U.S. Constitution, art. II, §2, cl. 2).  This is set forth in the first paragraph of the judge's ruling.

The position to which Cuccinelli was appointed, as a matter of constitutional law, is that of a superior officer — therefore the appointment to be lawful must — must — be approved by the Senate.  Because the Senate did not approve the appointment, the judge (rightly) concludes, the appointment is unlawful.

The judge rightly concludes that such agency actions are to be set aside as either void from the beginning or voidable by a judge (p. 50–53).

But this is exactly the same argument that two law professors — Steven G. Calabresi and Gary Lawson — make in their law review article titled "Why Robert Mueller's Appointment as Special Counsel Was Unlawful."

Lest we forget, Mueller, at the time of his appointment, had no position in government.  The power he wielded was greater and wider in scope than, or at the very least as great as, any U.S. attorney.  (Indeed, the law professors describe the power of a Mueller-style special counsel as being "supercharged" [p. 55]).  U.S. attorneys are superior officers, and in order for their appointments to be lawful, they need Senate approval — which did not happen in Mueller's case.

Similarly, the professors correctly point out, Mueller was not an inferior officer.  They write:

Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute — and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the Special Counsel.

The professors stop short of discussing whether the actions taken by Mueller are void.  But applying Judge Moss's rationale, it appears they would be — unless, perhaps, we have two systems of justice.

Mueller's team might have one dodge left: to claim it was all counterintelligence and that the prosecutions were ancillary and tertiary.  (U.S. attorneys do not "do" counterintelligence; they prosecute crimes.)

In this regard, the exchange between Senator Lindsey Graham and Inspector General Michael Horowitz is telling.

The underlying issue the senator was exploring is whether a counterintelligence investigation is legitimate if it does not seek to protect Americans, including the president-elect and later the president, from the foreign intelligence activity.  After all, counterintelligence investigations are not criminal investigations, but directed at countering the activities of foreign intelligence services.

Lindsey Graham: (14:01) There's a mountain of misconduct. Please don't ignore it. So my point is, if this is a counterintelligence investigation, who are they trying to protect? Who should they be trying to protect?

M. Horowitz: (14:16) Well, if it's the threat outlined in the friendly foreign government information, you would be looking to protect the election process, which would include --

Lindsey Graham: (14:27) The candidate?

M. Horowitz: (14:28) The campaign, the candidate, and the American people…

Lindsey Graham: (14:57) What would you call a counterintelligence investigation that never had a protective element?

M. Horowitz: (15:07) I'm not sure. Sorry, Mr. Chairman.

Lindsey Graham: (15:09) Okay. If without eventually trying to protect the entity being influenced, is it legitimate?

M. Horowitz: (15:22) It would depend on each fact and circumstance.

Horowitz had the opportunity to achieve greatness but managed to evade it.  "It would depend on each fact and circumstance," indeed!  No, it wouldn't.

Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).  He is also a former law professor and is the author of Comparative Contract Law.