{"id":60744,"date":"2019-07-26T08:54:01","date_gmt":"2019-07-26T12:54:01","guid":{"rendered":"http:\/\/www.bu.edu\/law\/?p=60744"},"modified":"2019-09-09T13:44:30","modified_gmt":"2019-09-09T17:44:30","slug":"beck-lecture","status":"publish","type":"post","link":"https:\/\/www.bu.edu\/law\/2019\/07\/26\/beck-lecture\/","title":{"rendered":"The Beck Lecture, A Constitution Day Event"},"content":{"rendered":"<p><span><strong>&#8220;Why Robert Mueller&#8217;s Appointment as Special Counsel Was Unlawful&#8221;<\/strong><\/span><\/p>\n<p>By Gary Lawson<\/p>\n<p>September 19, 2019<br \/>\n12:45 -2:00 pm<br \/>\nCharles River Room<br \/>\nBU School of Law<\/p>\n<p><!-- You can customize this button any way you like --><button id=\"eventbrite-widget-modal-trigger-69210038087\" type=\"button\">Register today!<\/button><br \/>\n<noscript><\/a>Buy Tickets on Eventbrite<\/noscript><\/p>\n<p><script src=\"https:\/\/www.eventbrite.com\/static\/widgets\/eb_widgets.js\"><\/script><\/p>\n<p><script type=\"text\/javascript\">\r\n    var exampleCallback = function() {\r\n        console.log('Order complete!');\r\n    };\r\n\r\n    window.EBWidgets.createWidget({\r\n        widgetType: 'checkout',\r\n        eventId: '69210038087',\r\n        modal: true,\r\n        modalTriggerElementId: 'eventbrite-widget-modal-trigger-69210038087',\r\n        onOrderComplete: exampleCallback\r\n    });\r\n<\/script><\/p>\n<p class=\"xmsonormal\"><i><span>Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (\u201cDOJ\u201d) has had in place regulations providing for the appointment of Special Counsels who possess \u201cthe full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.\u201d\u00a0 Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.<\/span><\/i><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><i><span>First, all federal offices must be \u201cestablished by Law,\u201d and there is no statute authorizing such an office in the DOJ.\u00a0 We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of Special Counsels over the past two decades do not \u2013 and even obviously do not \u2013 authorize the creation and appointment of Special Counsels at the level of United States Attorneys.\u00a0 They authorize the creation and appointment of Special Counsels to \u201cassist\u201d United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as Special Counsels, but they do not remotely authorize the creation of the kind of Special Counsels represented by Robert Mueller who replace rather than assist United States Attorneys.\u00a0 <\/span><\/i><span>United States v. Nixon, <i>418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel\u2019s appointment.<\/i><\/span><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><i><span>Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel.\u00a0 Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute \u2013 and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation.\u00a0 No such statute exists for the Special Counsel.<\/span><\/i><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><i><span>Third, the Special Counsel is, in all events, a superior rather than inferior officer and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say.\u00a0 This is obviously true as a matter of original meaning, and it is even true as a matter of case law once one understands that neither <\/span><\/i><span>Morrison v. Olson, <i>487 U.S. 654 (1988), nor <\/i>Edmond v. United States, <i>520 U.S. 651 (1997), can plausibly be read to say that any person who is in any fashion subordinate to another executive official is an \u201cinferior\u201d officer.\u00a0 Such a reading of those decisions leads to the ludicrous result that there is only one non-inferior officer in every federal department, which is a good reason not to read them that way.<\/i><\/span><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><i><span>There are surely times when Special Counsels are appropriate.\u00a0 Both statutes and the Constitution provide ample means for such appointments through the use of existing United States Attorneys with unimpeachable credentials and reputations for standing above politics.\u00a0 Any number of United States Attorneys have performed these functions with distinction.\u00a0 Statutes and the Constitution do not, however, permit the Attorney General to appoint a private citizen as a substitute United States Attorney under the title \u201cSpecial Counsel.\u201d\u00a0 That is what happened on May 17, 2017.\u00a0 That appointment was unlawful, as are all of the legal actions that have flowed from it.<\/span><\/i><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><a name=\"x__Hlk2408430\" id=\"LPlnk171531\"><\/a><i><span>The D.C. Circuit\u2019s unreasoned February 26, 2019 opinion in <\/span><\/i><span>In re Grand Jury Investigation <i>upholding Mueller\u2019s appointment does not come to grips with any of these arguments.\u00a0 The panel decision asserts (falsely) that the issues were either waived by the party challenging the appointment or are readily resolved by Supreme Court precedent.\u00a0 If the latter claim was true, those precedents would cry out for clarification or reconsideration by the Court.\u00a0 But that latter claim is only even minimally plausible based on the most superficial skimming of the applicable precedents.<\/i><\/span><o:p><\/o:p><\/p>\n<p class=\"xmsonormal\"><i><span>The statutory and constitutional structure of federal law enforcement is a serious matter, and one might have hoped that the federal courts \u2013 and the Department of Justice &#8212; would devote a bit more mental energy to that matter than they have thus far expended.<\/span><\/i><\/p>\n<p><strong>About the Speaker<\/strong><\/p>\n<p><strong>Gary Lawson<\/strong> came to Boston University in January 2000; he was named the Philip S. Beck Professor of Law in 2012. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. He is a founding member, and serves on the Board of Directors, of the Federalist Society for Law and Public Policy Studies, and is on the Editorial Advisory Board of the Heritage Guide to The Constitution, a reference tool for legal scholars.<\/p>\n<p>Professor Lawson twice clerked for Justice Antonin Scalia, first at the Court of Appeals for the District of Columbia Circuit and then at the United States Supreme Court. Prior to joining the BU Law faculty, Professor Lawson taught at Northwestern University School of Law, where he earned three of the School\u2019s most prestigious teaching awards.<\/p>\n<p><span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>&#8220;Why Robert Mueller&#8217;s Appointment as Special Counsel Was Unlawful&#8221; By Gary Lawson September 19, 2019 12:45 -2:00 pm Charles River Room BU School of Law Register today! Buy Tickets on Eventbrite Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (\u201cDOJ\u201d) has had in place regulations [&hellip;]<\/p>\n","protected":false},"author":6977,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1253],"tags":[3262],"_links":{"self":[{"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/posts\/60744"}],"collection":[{"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/users\/6977"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/comments?post=60744"}],"version-history":[{"count":10,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/posts\/60744\/revisions"}],"predecessor-version":[{"id":61737,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/posts\/60744\/revisions\/61737"}],"wp:attachment":[{"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/media?parent=60744"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/categories?post=60744"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bu.edu\/law\/wp-json\/wp\/v2\/tags?post=60744"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}