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Trump: Mueller probe invalid by lack of Senate confirmation.

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  • 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’ve 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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Whitaker’s appointment has FBI and DOJ officials in a
‘daze’

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 “recognized 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.”

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