(National Sentinel) Duty to Act: A legal analysis examining special counsel Robert Mueller’s continually expanding probe claims that Attorney General Jeff Sessions has a constitutional duty to reign him in.
The analysis, from practicing attorney and constitutional expert Robert Barnes, begins by noting that former campaign manager for President Donald J. Trump, Paul Manafort, has filed a motion in court to have all of the charges brought against him by Mueller dropped on the grounds that Deputy Attorney General Rod Rosenstein had no authority to appoint Mueller to investigate anything outside of the Trump campaign.
“If we follow that argument that would mean Sessions himself has exclusive authority to appoint a special counsel for non-collusion charges, and Sessions has taken no such action,” Barnes writes.
“Sessions himself should make that clear to Mueller, rather than await court resolution. Doing so would remove three of the four areas of inquiry from Mueller’s requested interview with President Trump,” he continued, which has not yet been scheduled.
Barnes noted further:
Sessions formally notifying Mueller that he does not have authority to act outside of campaign-related cases and cases related to obstruction of Mueller’s investigation would be doing what the Constitution compels: enforcing the Appointments Clause of the Constitution. Additionally, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases would be exercising Sessions’ court-recognized Constitutional obligation to “direct and supervise litigation” conducted by the Department of Justice. Furthermore, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases protects against the inappropriate use of the federal grand jury that defendant Manafort now rightly complains about.
Barnes also noted that Sessions’ restraint of Mueller would also reaffirm the public’s confidence in the justice system and restore the public’s faith in federal institutions.
The constitutional expert reminds readers that Sessions’ recusal was very pointed and specific, to only include “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”
He worte the recusal letter thus limits Sessions’ recusal specifically to the 2016 campaigns; it does not pertain to anything beyond that.
Mueller, however, has greatly expanded his probe to include any potentially illegal activity involving anyone from the Trump campaign, hence the indictment of Manafort and others for charges unlated to the special counsel’s original purpose — to see if there was any “collusion” or other illegal activity involving Russia and the Trump campaign.
“Constitutionally, Sessions has a ‘duty to direct and supervise litigation’ conducted by the Department of Justice,” Barnes writes. “Ethically, professionally, and legally, Sessions cannot ignore his supervisory obligations for cases that are not related to the ‘campaigns for President.'”
Barnes noted as well that the Constitution’s Appointments clause says that the democratic process must control appointments of all but “inferior” officers.
“This means there can be no principal executive branch officer except those the President personally appoints and the Senate advises and consents to,” he wrote. “The special counsel, when not appointed by the President, cannot act legally except as an “inferior” officer, strictly limited to the jurisdictional subject matter limits of his appointment and supervisory power of those above him that have been directly, democratically appointed by democratically elected officials.”
By limiting Mueller, Sessions would be enforcing limits set forth by Rosenstein’s letter authorization.
“Contrary to anti-Trump critics, Mueller’s mandate was not ‘get Trump,’ ‘indict anybody who ever worked for Trump,'” Barnes wrote.
“Mueller’s authority is limited to ‘links between the Russian government and individuals associated with the campaign of President Donald Trump.’ Any subject matter that does not concern ‘the campaign,’ is a subject matter that Sessions Constitutionally must directly supervise Mueller,” he added.
That includes Sessions’ power to notify Mueller and even revoke his authority in cases outside of the Trump campaign, said Barnes.
“In sum, Sessions notifying Mueller he does not have authority to act on non-campaign related investigations would restore Mueller’s special counsel’s office to its intended Constitutional constrictions, remove the Beria-style investigative techniques witnessed over the past year, and restore public faith that our Constitutional democracy is still a Constitutional democracy,” Barnes wrote.
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