President Trump wants to put an end to the Department of Justice's Russia inquiry. He has questioned whether he can pardon himself and whether Atty. Gen. Jeff Sessions should have recused himself from the investigation.
The president is a fighter, but he'll need to pick his fight. Expressing annoyance with his attorney general and daydreaming about pardoning himself won't do. Sessions' recusal merely reflects that no one can investigate himself, and the embarrassing idea that a president may grant his own pardon has been consistently rejected by the Justice Department's Office of Legal Counsel.
There is, however, another question the president has every reason to be asking: Is the post of special counsel, a Department of Justice administrative creation, itself constitutional? The appointment of Robert S. Mueller III is open to reasonable doubt.
To begin with, the role of the special counsel cannot be justified by the Supreme Court's 8-1 approval of the earlier independent counsel law, which was passed in 1978 and expired in 1999. The high court's dissenter was Justice Antonin Scalia, and subsequent precedent and scholarship acknowledge that Scalia had the better argument. Indeed, Congress let the law expire because, as Scalia reasoned, it made it too easy to falsely call one's political opponent a crook. (Both Republicans and Democrats were equally happy to see the law sunset.)
Under the expired law, independent counsels were appointed by a special three-judge panel of the U.S. Court of Appeals, but only after the attorney general conducted a preliminary investigation based on "specific and credible" information about alleged wrongdoing by the president. Under the old law, if there were "no reasonable grounds" after the preliminary investigation, that was reported to the court and the matter ended. These careful first steps are not explicit in the Justice Department's current special counsel regulations, and there are no signs that in the wake of Sessions' recusal, a constitutionally sufficient process triggered the Mueller appointment.
Statutorily appointed independent counsels also had an obligation to make reports to the appointing court every six months. In order to expand the boundaries of an investigation, they had to get the approval of the attorney general and notify the court. The court decided what reports were made public or sent to Congress. By comparison, Mueller appears to be operating unilaterally.
News reports indicate that Mueller is directing White House personnel to retain documentation and that he's going after Trump's tax returns. Those suspicious of the president insist upon the necessity of this line of inquiry, but they skip over whether a politically unaccountable, unconfirmed special counsel may constitutionally make such demands.
Another basic objection can be raised about the special counsel. Scalia noted that employing an independent counsel stands criminal practice on its head: The normal order is crime first, ascertain the guilty second. Mueller's appointment originated with former FBI Director James Comey's ethically dubious press leak and his apparent presumption of the president's bad intent. Perhaps preidentification of guilt was considered acceptable under the independent counsel law because it also mandated protections against abuse, but again, Mueller's administrative appointment isn't subject to such checks.
An Oct. 16, 2000, memorandum, by then-Assistant Atty. Gen. Randolph D. Moss, affirmed the Office of Legal Counsel view going back as far as 1818: A sitting president cannot be indicted and criminally prosecuted. The special counsel has not formally indicted Trump. But given Comey's hair-trigger assumption that Trump was up to no good, and the way the special counsel process defines the president as a wrongdoer before any wrong is established, the investigation itself is arguably equivalent to an unconstitutional indictment.
Indicting a sitting president is unconstitutional because it gives insufficient weight to the people's considered choice of chief executive. Presidents can be subject to civil litigation (such as Paula Jones' suit against President Bill Clinton) but not to the burden and stigma of a criminal case. In the words of the Office of the Legal Counsel, "To wound the president by criminal proceeding is to hamstring the operation of the whole government apparatus, both in foreign and domestic affairs."
Why have those advising Trump not raised these fundamental questions? Perhaps it is because his advisors, like the president, are more familiar with business law — transactional law — where the ingenuity of legal counsel combines with investment savvy to achieve a success memorialized in a contract. Business law and constitutional practice are not the same, and the president is not well served if his advisors do not make that clear.
That the application of the Constitution is not a matter of commercial arm-wrestling might seem to the disadvantage of a president whose measure is "the art of the deal," but it is not. Moreover, asking basic questions about the constitutionality of the special counsel's appointment does not place the president above the law; it merely gives him the benefit of it.
Douglas W. Kmiec teaches constitutional law at Pepperdine University. He was principal deputy and then head of the Office of the Legal Counsel at the Department of Justice from 1985 to 1989.