Trump’s new talking point about Mueller is ‘flat out wrong,’ legal experts say

  • President Donald Trump incorrectly claimed special counsel Robert Mueller’s appointment was unconstitutional because he was not confirmed by the Senate.
  • Trump was addressing criticisms from legal scholars that the appointment of acting Attorney General Matt Whitaker was unconstitutional because the Senate had not confirmed him to his present role.
  • But legal experts tell INSIDER that because Mueller is an “inferior officer” who reports to someone higher up in the Department of Justice and not the President, he does not require Senate confirmation.

President Donald Trump deflected criticisms of the constitutional validity of the appointment of new acting Attorney General Matt Whitaker on Friday by claiming special counsel Robert Mueller’s appointment was unconstitutional because he was not confirmed by Senate – but legal experts say that claim is baseless.

“Mueller was not Senate confirmed,” Trump claimed. “Whitaker was Senate confirmed when he was the U.S. attorney from Iowa. Mueller…should have been Senate confirmed. But because of all the conflicts, they didn’t want to bring him before the Senate…so don’t talk to me about Whitaker.”

California-based attorney Alexander Stern explained in a Friday email to INSIDER that because Mueller is what the Supreme Court has designated an “inferior officer” – and not a “principal officer” who reports directly to the President – he does not need to be confirmed by the Senate.

“Trump is simply flat out wrong that Mueller’s appointment is unconstitutional given he reports to someone above him and below Trump,” Stern said.

“He previously reported to Deputy Attorney General Rod Rosenstein. Setting aside the likely invalidity of the Whitaker appointment, Mueller would now report to Whitaker,” Stern added. “Either way, Mueller does not report directly to the President.”

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Stern – as well as former acting Solicitor General Neal Katyal and lawyer George Conway – argue that Whitaker’s appointment is unconstitutional because as a principal officer who reports directly to Trump, Whitaker is required to receive the advice and consent of the US Senate, as stipulated by the US Constitution’s Appointments Clause and upheld by the Supreme Court.

Justice Clarence Thomas wrote in a 2017 opinion that the authors of the Constitution included provisions for Senate advice & consent because they “recognised the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.”

Until Wednesday, Whitaker held the position as former Attorney general Jeff Sessions’ chief of staff, which did not require Senate confirmation.

Stern added that while Mueller’s appointment is not unconstitutional, “it does add weight to the argument that Whitaker’s appointment is unconstitutional.”

“Specifically, the chain of command before looked like Jeff Sessions (a Senate-confirmed principal officer who recused himself in the Mueller probe), then Rosenstein (also Senate-confirmed), then Mueller,” Stern said. “Now, because Trump unconstitutionally bypassed the Senate to install Whitaker, Mueller is being supervised by someone that did not receive Senate approval.”

While the Senate voted to confirm Whitaker to the position of US Attorney for the Southern District of Iowa in 2004, as Trump noted in his press conference, former federal prosecutor Glenn Kirschner pointed out on Twitter that since Whitaker is no longer serving in that role, a confirmation for a prior position does not make his current appointment constitutionally valid.

“Under the Federal Vacancies Reform Act, past confirmation doesn’t count (both Mueller and Whitaker were confirmed in previous positions),” he said. “They would have to be serving PRESENTLY in a Senate-confirmed position to be eligible for appointment to a ‘principal officer’ position.”