This amounts to Trump’s opinion, and is a matter of debate among constitutional scholars. The Supreme Court ruled in 1988 that the appointment of an independent counsel was constitutional, but the rules and circumstances were a little different then. And the Supreme Court has not spoken directly on the constitutionality of current regulations for special counsels.
But here, we lay out some of the facts and arguments that underpin the cases for and against the president’s claim. Independent or special counsels are appointed to investigate executive branch officials, and the existing federal code empowers the attorney general to make the determination when a special counsel is necessary.
According to the Code of Federal Regulations, there are grounds to appoint a special counsel if an investigation into a matter “would present a conflict of interest for the Department [of Justice] or other extraordinary circumstances” and in cases when it “would be in the public interest” to have an outside counsel.
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In his order appointing former FBI Director Robert S. Mueller III as special counsel, Rosenstein limited Mueller’s role to leading “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including … any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation; and any other matters within the scope of 28 C.F.R. § 600.4(a).” That last bit refers to a part of the federal code that says that the jurisdiction of a special counsel is to include “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” No media cameras were allowed at the reception, but a reporter for the conservative Daily Caller news site, Jena Greene, was allowed in and tweeted a video of the Trumps entering a crowded room. Greene quoted the president saying his wife had “a little problem” recently but wouldn’t miss the reception. She said he joked about the media’s speculation regarding the first lady’s recent absence and “laughed off” rumors of them breaking up. He said it wasn’t happening.
As we said, Trump now claims the appointment of Mueller was unconstitutional. The argument, however, is not necessarily that the appointment of any special counsel would be unconstitutional, but rather that this one is, because of the broad investigative powers given to Mueller.
In an opinion piece written for the Wall Street Journal on May 13, Steven Calabresi, who once served as a special assistant to Attorney General Edwin Meese and as a law clerk to Justice Antonin Scalia, argued that the broad powers bestowed upon Mueller qualify him as a “principal officer” who by law must be appointed by the president and confirmed by the Senate. “The only significant difference between Mueller’s appointment and the appointment scheme for Independent Counsels, upheld by the Supreme Court in Morrison v. Olson, is that Mueller, unlike the Independent Counsels, was appointed by President Trump’s own appointee, Deputy Attorney General Rod Rosenstein, rather than by a three-judge court,” Sklansky said. “But that just makes the argument for the constitutionality of Mueller’s appointment even stronger. Given the Supreme Court’s ruling in Morrison v. Olson, there is no remotely plausible argument that Mueller’s appointment was unconstitutional.”
“In 1988, the Supreme Court ruled in Morrison v. Olson that the Constitution allowed an Independent Counsel to be appointed by a three-judge court, completely separate from the Executive Branch,” Sklansky said via email. “In reaching that conclusion, the Supreme Court held that an Independent Counsel is an ‘inferior officer,’ not a ‘principal officer,’ for reasons that very clearly apply to Mueller: he can be removed by a higher-ranking Department of Justice official, he is authorized only to investigate and, if appropriate, prosecute, particular federal crimes, not to formulate Department of Justice policy, and his jurisdiction is limited to the matters delegated to him by the Department of Justice.