The Terrible Arguments Against the Constitutionality of the Mueller Investigation
He didnt explain what his argument was, or where he got it, but a good guess is that it came from some recent writings by a well-respected conservative legal scholar and co-founder of the Federalist Society, professor Steven Calabresi. Unfortunately for the president, these writings are no more correct than the spelling in his original tweet. And in light of the presidents apparent embrace of Calabresis conclusions, it is well worth taking a close look at Calabresis argument in support of those conclusions.
Calabresi has made his argument in a Wall Street Journal op-ed, on a Federalist Society teleconference and in a more detailed paper he styles as a Legal Opinion. He contends that all of Special Counsel Muellers work is unconstitutionally null and void because, in Calabresis view, Muellers appointment violates the Appointments Clause of the Constitution, Article II, Section 2, Clause 2.
The Appointments Clause distinguishes between two classes of executive-branch officersprincipal officers and inferior officersand specifies how each may be appointed. As a general rule, the clause says that Officers of the United Statesprincipal officersmust be nominated by the president and appointed with the Advice and Consent of the Senate. At the same time, however, the Appointments Clause allows for a more convenient selection method for inferior officers: It goes on to add, but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of law, or in the Heads of Departments.
(snip)
A final observation: It isnt very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldnt know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the constitutional arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyersregardless of their politicsowe a duty to abjure.
https://lawfareblog.com/terrible-arguments-against-constitutionality-mueller-investigation