Why the Mueller Investigation Is Constitutional

AP Photo/J. Scott Applewhite, File

Special Counsel Robert Mueller departs after a meeting on Capitol Hill in Washington. 

Deep State! Witch Hunt! Swamp! NO COLLUSION! Donald Trump’s Twitter harangues against Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election have become so common that we are inured to them. Likewise, the denunciations of Mueller by Rudy Giuliani, Devin Nunes, and Sean Hannity can generally be ignored, even when they deliver them in lower-case letters. But when a noted scholar of constitutional law raises similar, though far more rational, arguments, attention must be paid.

Steven Calabresi is chairman of the board of the Federalist Society and the Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law—and, we should add, a friend and colleague of ours.He recently published an op-ed in The Hill, purporting to explain why President Trump has behaved lawfully by demanding a Justice Department investigation of so-called FBI spying, and why Mueller’s own investigation is “unconstitutional.” He is half right, but it is the lesser half.

Calabresi writes:

Many liberals and critics are under the mistaken belief that President Trump is violating the rule of law and civil liberties ... by ordering the Justice Department’s Inspector General to investigate whether or not the FBI spied on his 2016 presidential campaign. In fact, the president is behaving totally lawfully.

This is sleight of hand. Perhaps we missed it, but we know of no serious critic who claims that Trump lacks the legal authority to give orders to the Department of Justice. Rather, the criticism is that he has disregarded the long-standing convention of DOJ independence. A presidential order can be completely lawful in a formal sense, while still endangering “the rule of law and civil liberties.” Calabresi’s observation about Trump’s power is therefore accurate, but nonetheless a non-sequitur.

Calabresi’s second point, however, is just wrong. He argues that Mueller’s investigation is unconstitutional because he was “never nominated by the president and confirmed by the Senate.” He reaches this conclusion by claiming that Mueller is “acting like a U.S. attorney” rather than an assistant and is therefore “a principal officer” who must be nominated by the president and confirmed by the Senate. But “acting like” a principal officer has no constitutional meaning and, in any case, Calabresi’s only support for this position is that Mueller “is more powerful and famous than are any of the 96 U.S. attorneys.” The factual claim regarding power is dubious, especially in light of Mueller’s referral of the Cohen investigation to the Southern District of New York. Moreover, there is no requirement that prosecutors who conduct national investigations be less “powerful” than individual U.S. attorneys. Fame, needless to say, is constitutionally irrelevant.

Calabresi makes his point at somewhat greater length in a Wall Street Journal op-ed, in which he cites Justice Rehnquist’s majority opinion in Morrison v. Olson. That case, however, upheld the authority of a special counsel who had much broader powers than Mueller’s. Calabresi quotes Rehnquist as writing “that independent counsel Alexia Morrison qualified as an ‘inferior officer,’ not subject to the appointment process, because her office was ‘limited in jurisdiction’ to ‘certain federal officials suspected of certain serious federal crimes.’” 

Mueller is different, according to Calabresi, because he “is investigating a large number of people and has already charged defendants with many different kinds of crimes.” As it happens, that is an apt description of many investigations under the Ethics in Government Act of 1978, which was upheld 8-1 by the Rehnquist Court in Morrison. It is axiomatic that a prosecutor does not need to ignore crimes that are discovered in the course of a valid investigation. And of course, Mueller’s subsequent conduct, even if it has been too expansive, would not retroactively invalidate his initial appointment. The very most that can be said, therefore, is that some of Mueller’s indictments might be vulnerable to challenge, but not that his very position violates the Constitution.

Calabresi’s reading of the Constitution’s text is strained and unprecedented. Moreover, text is not the only source of constitutional meaning. In Calabresi’s own leading work on constitutional theory, he writes that “a foundational principle of law is that to some degree what the law is on the books is determined by what it actually is in practice.” (The Unitary Executive, p. 5.) There have been special prosecutors, not confirmed by the Senate, since 1875. They have repeatedly exposed corruption in the executive branch, most notably Richard Nixon’s conspiracy to obstruct justice. The institution is part of the reason for the success of the American regime. A proposal to radically weaken it is far from “conservative.” It is just what Edmund Burke hated about the French Revolution: Calabresi proposes to tear down well-functioning traditions on the basis of an abstract and untested theory. 

Finally, Calabresi asserts that “when an official uses government power in an unconstitutional way, anything that results from it is subject to the exclusionary rule and is not admissible in court,” evidently invalidating virtually all of Mueller’s work, including his referral of Cohen to the SDNY, as the “fruit of the poisonous tree.” This far exceeds any existing interpretation of the various exclusionary rules, which have been repeatedly narrowed by the Rehnquist and Roberts courts. In any event, an overly expansive investigation by Mueller would still be within the authority of the DOJ, and therefore not unconstitutional. 

We are always enlightened by Steven Calabresi’s scholarly work, which we very much admire. But he is wrong about the Mueller investigation.

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