For Whom Is Mr. Mueller Speaking?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
While America is waiting to see what Special Prosecutor Robert Mueller reported, here is a question: Whom does Robert Mueller represent? On whose behalf is he speaking in the document just handed to the Attorney General? Is he speaking for a grand jury? Or the Executive branch? Or for Congress? Or the “United States,” as he suggests in documents he’s filed in court?
We raise these questions because Mr. Mueller’s appointment as special prosecutor was opposed by the only officer the Constitution empowers to commission him in the first place. That situation, in our opinion (a minority one, we comprehend), lies at the heart of all the sturm and drang of the 675 days Mr. Mueller worked on his report. The only one who seems to appreciate the point is Mr. Trump.
It has infuriated him. We know that because the President has been railing about it from the get-go, most recently in one of his patented tirades to Fox News’ Maria Bartiromo: “A deputy, that didn’t get any votes, appoints a man that didn’t get any votes, he’s going to write a report on me. I had one of the greatest election victories in history. . . . and now I have a man . . .
“ . . . because we have an attorney general who — nobody can even believe he didn’t tell me, but he recused himself — so I have a man who is a deputy who I don’t know, who I didn’t know at all, and he appoints a man who had just left my office, I didn’t give him the job at the FBI, [James] Comey’s his best friend, but listen . . . I have a deputy, appoints a man to write a report on me, to make a determination on my presidency? People will not stand for it.”
Mr. Trump is being widely mocked for this kind of tirade. George Washington, though, or Thos. Jefferson would have grasped his point exactly. Washington presided at the convention that wrote the Constitution that vests solely in the president the power to commission “all” — not “some of,” not “many of,” not “most of,” but “all” the officers of the United States.
Jefferson was out of town when the Constitution was written, but he later warned against permitting a president to be dragged through the courts. Quoth Jefferson: “Would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?”
No doubt Mr. Mueller is a fine person, but in this case, an argument can be made that he’s a constitutional imposter. The President was considering Mr. Mueller for director of the FBI when a deputy in the Justice Department, without informing the president, commissioned him as special counsel to investigate the very officer in whom is vested the executive power to commission “all” officers.
Mr. Mueller said nothing to the president about that. So whom does Mr. Mueller represent when he goes into court signing documents on behalf of the United States? Thirty of the 50 states elevated Mr. Trump to the presidency. The 116th United States House has had from the get-go all the power it needs to launch an impeachment inquiry. It still hasn’t done that in a proper way.
We’re not such a purist in respect of the Constitution that we fail to see that the arguments we adduce here — and that Mr. Trump has been making — are not prospering. We understand the Supreme Court has taken a different view. We, though, share the concerns of Justice Antonin Scalia, who warned that unleashing this kind of prosecutor risks affecting the “boldness of the president.”
Just for the record, we made these arguments when special prosecutors were being sicced on both Republicans and Democrats, most notably, President Clinton, when we first started writing about Jefferson’s warning. At this juncture, we know no more about what Mr. Mueller’s report says than any other newspaper. Whatever he turns out to have reported, though, it’s hard to see for whom, in the constitutional sense, he’s speaking.
Imagine: Drawing of Justice Scalia by Elliott Banfield, courtesy of the artist. Correction: London is where John Adams was during the Constitutional Convention of 1787, a point that was mis-stated in an earlier edition of this editorial.