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Flake Undermining the Constitutionality of the Mueller Appointment?

Flake Undermining the Constitutionality of the Mueller Appointment?
Sen. Jeff Flake (R-AZ) speaks to reporters following a Senate Judiciary Committee hearing on Capitol Hill November 15, 2018, in Washington, D.C. Flake has recently promised to vote against new federal judges nominated by U.S. President Donald Trump unless the U.S. Senate protects the special investigation being conducted by Robert Mueller's team of investigators. (Win McNamee/Getty Images)

By Thursday, 15 November 2018 04:33 PM Current | Bio | Archive

Outgoing Republican Senator Jeff Flake is not leaving the Senate without taking a parting shot at President Trump.

Senator Flake vowed that, during the current lame duck Senate session, he will not vote for any of President Trump’s judicial nominees unless a bill he has co-sponsored with Democratic Senator Chris Coons of Delaware to protect Special Counsel Robert Mueller from being fired at will receives a vote on the floor of the Senate.

The bill would codify existing Justice Department regulations that the special counsel can only be fired for cause and would provide the special counsel an opportunity for judicial review of a firing decision.

When the two senators tried to bring their bill up for a vote, with some bipartisan support, Senate Majority Leader Mitch McConnell objected because he did not see why it was necessary. Senator McConnell said he had not heard any indication that the president was preparing to put an end to the Mueller probe.

Senator Flake is not ready to give up just yet.

“This is not a moment for our leadership to be weak or irresolute or compromised in any way,” Senator Flake said, “the president now has this investigation in his sights and we all know it.”

Senator Flake was not happy with President Trump’s decision to replace Jeff Sessions at the helm of the Justice Department with Matt Whitaker temporarily as the acting attorney general. Whittaker is currently overseeing the Mueller investigation, which he has criticized in the past. Some of Whittaker’s critics have argued that, without Senate confirmation, his appointment is unconstitutional. Others have demanded that he recuse himself from overseeing the Mueller investigation, as Jeff Sessions had done.

Mueller’s protectors have a more fundamental problem than what the acting attorney general may do in imposing stricter controls and deadlines on the Mueller probe.

The special counsel is a non-Senate confirmed official who presently is given strong discretionary power to go after higher ranking executive officers, including the president. For that reason, conservative commentators such as Mark Levin have gone so far as to opine that Mueller’s appointment itself as special counsel without confirmation by the Senate violated the appointments clause of the Constitution (Article II, Section 2).

With broad powers akin to United States attorneys who require Senate confirmation, “Mueller would've had to be nominated for Senate confirmation like any other principal officer in the Executive Branch,” Mark Levin wrote. Noting that “the procedure established by the Framers for making such consequential executive appointments” was not followed, Levin concluded that “every subpoena, indictment, and plea agreement involving the Mueller investigation is null and void.”

Conservative commentators like Mark Levin are not alone in raising constitutional issues related to the Mueller appointment, particularly efforts to protect the special counsel legislatively.

Akhil Reed Amar is a professor of law and political science at Yale University, who specializes in American constitutional law. He is a registered Democrat who is no fan of President Trump. Nevertheless, on September 26, 2017, Professor Amar testified before the Senate Judiciary Committee regarding his doubts that proposed legislation under consideration to limit the president’s power to remove special counsels, including Mueller, was constitutional.

The Constitution allows the president, courts, or heads of departments to appoint “inferior” officers without Senate confirmation if authorized to do so by Congress. However, Professor Amar testified, “an officer who wields great prosecutorial discretion over undeniably consequential matters, and who cannot be countermanded at will by the President or the Attorney General or any other Senate-confirmed officer, and who cannot be fired at will by higher-ups in the executive branch, is not truly inferior,” under the standards set by Supreme Court precedent. Unlike Levin, Professor Amar did not argue that Mueller’s appointment was unconstitutional from the outset — so long as “he can be fired at will.”

However, by protecting Mueller from being fired at will, the proposed legislation would likely be ruled unconstitutional.

The president “must retain the ability to fire Mueller at will for Mueller to remain truly inferior as required by the Constitution,” Professor Amar testified. “One simply cannot be both truly independent and truly inferior.”

By trying to save Special Counsel Mueller from being fired at will through legislation, Senator Flake and other Mueller defenders may be bolstering the argument of those who believe that Mueller’s appointment without Senate confirmation lacks a constitutional foundation.

Joseph A. Klein is a featured author for FrontPage Magazine and the United Nations correspondent for Canada Free Press. He has also authored the books "Global Deception: The UN’s Stealth Assault on America’s Freedom" and "Lethal Engagement: Barack Hussein Obama, the United Nations & Radical Islam." Klein, a Harvard Law school alumnus and practicing attorney, has been a guest on many radio shows as a commentator and has appeared on several TV shows including "Fox & Friends." For more of this reports — Click Here Now.

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Outgoing Republican Senator Jeff Flake is not leaving the Senate without taking a parting shot at President Trump.
flake, mueller, constitution
Thursday, 15 November 2018 04:33 PM
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