Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Steven Calabresi contends that Mueller is in fact a principal officer, who, as a result, must be nominated by the president, and confirmed by the Senate.
Latest in Morrison v. Olson
George Conway, writing in Lawfare a few weeks ago, forcefully rejected professor Steven Calabresi’s argument that the special counsel’s appointment was unconstitutional. I agree with his analysis as a general matter, though one of Conway’s particular conclusions strikes me as hasty: that “the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them.”
There is no serious argument that Robert Mueller’s appointment violates the Constitution.
I've noticed, in a few recent discussions, rather uncritical reliance on the majority opinion in Morrison v.
Alan Dershowitz, in a series of recent op-eds, has taken to arguing in his characteristic take-no-prisoners style that the whole issue of whether President Trump might have obstructed justice is a red herring. Even if the President ordered James Comey to shut down the Flynn investigation and had a corrupt intent for doing so, this would still not amount to the crime of obstruction of justice.