Politics makes strange bedfellows they say, but no relationship in Washington, D.C. is quite as strange right now than that of White House advisor Kellyanne Conway and her husband, George.
While Kellyanne often spends her days acting as the president’s surrogate for spreading “alternative facts” (otherwise known as lies) on cable TV news airwaves, George Conway has been busy writing a densely researched article for Lawfare with a title that will explain why their relationship seems so bizarre: The Terrible Arguments Against the Constitutionality of the Mueller Investigation.
Mr. Conway’s article was inspired by one of his wife’s boss’s tweets in which Trump plays the role of constitutional scholar, a major self-miscasting if there ever was one.
Kellyanne’s husband wasn’t merely upset by Trump’s misspelling of the word “Counsel,” but by the entire argument underlying the president’s assertion that the Mueller probe was not in line with our nation’s founding document.
We’ll spare you the intricacies of the complicated legal reasoning behind the arguments on both sides of the issue by giving this brief summary:
Those who believe that the appointment of a special counsel to investigate the Russian collusion in the 2016 election is unconstitutional base their claim on the Appointments Clause of the Constitution which divides appointments to executive branch jobs into two categories: principal officers and inferior officers.
Principal officers, or “Officers of the United States” as the Constitution calls them, must be nominated by the president and appointed “with the Advice and Consent of the Senate.”
Inferior officers can be named differently according to the Appointments Clause: “Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of law, or in the Heads of Departments.”
Trump’s declaration of Mueller’s appointment as unconstitutional rests on the idea that Special Counsel Mueller is acting as a principal officer and that, thus, his appointment violates the Constitution since he was appointed by the acting attorney general, and not by the president with the advice and consent of the Senate.
The claims that Mueller is a principal officer made by Trump-supporting conservative legal analysts is based on the theory that his job is the same as that of the 93 U.S. attorneys who are nominated by the president and confirmed by the Senate and is reinforced by the fact that Mueller does not have anyone directly supervising what he is doing.
Mr. Conway relays that argument in detail before demolishing it completely by citing the ways that the argument is “just wrong—uncomplicatedly, flatly wrong.”
His primary argument is that there is more than one way to land a position as a U.S. attorney, with Congress having provided an alternative method of appointment through a law that “provides that, until the Senate confirms a presidential nominee, U.S. attorney vacancies can be filled for up to 120 days by an appointment made by the attorney general and then indefinitely by local district courts. Such non-presidential, non-Senate-confirmed appointees are, as one court of appeals has put it, “fully-empowered United States Attorneys, … not subordinates assuming the role of ‘Acting’ United States Attorney.”
That opinion is bolstered by the fact that the Supreme Court itself has referred to U.S. attorneys as “inferior officers” in its own rulings.
The male half of the Conway household spends a lot more time and space detailing further arguments against the unconstitutionality of the Special Counsel’s legitimate appointment, but now that you have the basic gist of the debate, let’s skip ahead to Conway’s conclusion which may get him banished to the living room couch if his wife’s boss gets wind of it.
“In short, there is no serious argument that Special Counsel Mueller’s appointment under the Department of Justice’s regulations violates the Appointments Clause specifically or the separation of powers generally.
“A final observation: It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.“
It’s good to see that there’s at least one fact-based, analytical legal mind in the Conway family.
Too bad the wrong family member has the president’s ear.
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