Opinion on the Constitutionality of Robert Mueller's Appointment

21 Pages Posted: 25 May 2018 Last revised: 19 Jun 2018

Date Written: May 22, 2018

Abstract

I argue in this Legal Opinion that Deputy Attorney General Rod Rosenstein's appointment of Robert Mueller is unconstitutional both under the test for officer inferiority set forth in Justice Scalia's opinion in Edmond v. United States, which is cited as good authority in Free Enterprise Fund v. PCAOB and also under the test for officer inferiority set forth in Chief Justice Rehnquist's majority opinion in Morrison v. Olson. Under both tests, Mueller is acting as a principal officer even though he has not been nominated by the President and confirmed by the Senate. Mueller's appointment is therefore unconstitutional.

Keywords: Constitutional Law, Separation of Powers, and Criminal Law

JEL Classification: K10, K30

Suggested Citation

Calabresi, Steven G., Opinion on the Constitutionality of Robert Mueller's Appointment (May 22, 2018). Northwestern Public Law Research Paper No. 18-14. Available at SSRN: https://ssrn.com/abstract=3183324 or http://dx.doi.org/10.2139/ssrn.3183324

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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