Is the appointment of Special Counsel Mueller legal without Senate approval?

Free Republic vanity ^ | 13 Jun 2017 | vanity

[Meet the New Boss]

Under laws passed by Congress, every United States attorney must be approved by the Senate:

28 U.S. Code § 541 - United States attorneys

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by the President.

Yet under Department of Justice regulations, a Special Counsel appointed by the Attorney General purports to have the power of a US Attorney but is not required to be confirmed by the Senate.

28 C.F.R. § 600.6 Powers and authority [of the Special Counsel].

Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.

The "limitations in the following paragraphs" discuss oversight and compliance with DOJ regs but do not significantly take away the power of the Special Attorney to be a de facto US Attorney.

The regulations of the DOJ cannot override a law passed by Congress.

The Special Counsel according to the regulations must be someone from outside the US government. So if the Special Counsel is then given the powers of a US Attorney by the Justice Department, isn't it necessary that the appointment be approved by the Senate, like other US Attorneys?

[Meet the New Boss]

Does any Freeper know the answer to this?

It may be a simple and obvious answer, perhaps this question has been litigated already and I just happened not to hear of it.

This occurred to me in thinking about the question raised earlier by a Freeper as to whether Mueller granted immunity to Comey.

How can someone not approved by the Senate grant immunity from federal prosecution like a US Attorney?

[Red Badger]

Yet under Department of Justice regulations, a Special Counsel appointed by the Attorney General purports to have the power of a US Attorney but is not required to be confirmed by the Senate.

Maybe it's like a contractor...................

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[jjotto]

US Code 28 CFR 600.1

Congress authorizes it.

[Okeydoker]

Special Counsel does not require senate approval. He is not a Presidentially appointed US Atty. He is appointed by the Atty Gen when a conflict exists requiring outside counsel.

[sickoflibs]

§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Legal Information Institute Cornell Law School 600.1

[Meet the New Boss]

CFR are regulations passed by the agencies, not laws passed by Congress

[Meet the New Boss]

That is a regulation adopted by the Justice Department, not a law passed by Congress

It cannot trump a law requiring every US Attorney to be approved by the Senate

[Buckeye McFrog]

It sounds like Mueller is spending a heckuva lot of taxpayer money. Is that part legal? Congress has the power to appropriate funds.

[Meet the New Boss]

I read somewhere that Mueller is preparing a budget for the SC office for approval by Deputy AG Rosenstein next month.

[gdani]

So if the Special Counsel is then given the powers of a US Attorney by the Justice Department, isn't it necessary that the appointment be approved by the Senate, like other US Attorneys?

The ultimate answer can probably be found in the debate & testimony re: whatever bill made special counsels possible.

I don't think it is necessary because, technically, the law is written to not make it necessary. If the intention was to make Special Counsels subject to Senate/congressional approval, the language would clearly say that.

[drjimmy]

He is not a US Attorney.

[Meet the New Boss]

The ultimate answer can probably be found in the debate & testimony re: whatever bill made special counsels possible.

There was no bill. There once was a law passed by Congress providing for independent prosecutors, but that law expired.

I don't think it is necessary because, technically, the law is written to not make it necessary. If the intention was to make Special Counsels subject to Senate/congressional approval, the language would clearly say that.

Mueller was not appointed under any Congressional law. He was appointed only under the language of a regulation adopted only by the Department of Justice, not Congress.

[Regulator]

Isn’t it amazing that so many people think the Code of Federal Regulations are “laws”?

The people in the government like to say that too.

Except when you pin them down and say, which part of the US Code did this come from?

Which of course they can’t answer, since it didn’t. It was a regulation written by a bureaucrat.

As for the DoJ giving itself the power to appoint surrogate US Attorneys, I think that’s a real issue. Where’s the authority for that?

Considering what’s coming out about Mueller, seems obvious that such “counsel” should be subject to a vote.

[Meet the New Boss]

He is not a US Attorney.

The DOJ has purported to give him all the powers of a US Attorney.

They cannot escape the requirement of Senate approval by giving him all the power of a US Attorney, yet not calling him that title.

[Meet the New Boss]

As for the DoJ giving itself the power to appoint surrogate US Attorneys, I think that’s a real issue. Where’s the authority for that?

I dunno. I find it hard to believe this issue has not been raised and resolved before, and maybe I'm just a dummy for not knowing the answer.

[jjotto]

The enabling legislation is the Special Counsel Act of 1999.

But perhaps the question is specifically about the power to grant immunity, which would probably be an “inherent power” of a Special Counsel.

[Meet the New Boss]

The enabling legislation is the Special Counsel Act of 1999.

You claim this is an Act passed by Congress? Give me the citation to the US Code containing this act.

Wikipedia, for what it's worth, says there is no statutory basis for the current special counsel procedure.

With the expiration of the independent counsel authority in 1999, the Department of Justice under Attorney General Janet Reno promulgated regulations for the future appointment of special counsels. As of 2017, these regulations remain in effect as 28 CFR section 600.[5] While the regulations place limits on the authority of the attorney general, for example to fire the special counsel once appointed, they are internal Department of Justice regulations without an underlying statutory basis.

[gdani]

They cannot escape the requirement of Senate approval by giving him all the power of a US Attorney, yet not calling him that title.

Well, apparently they can. It is happening.

Perhaps it was determined somewhere down the line subjecting a Special Counsel to the same approval (and/or creation) process as US attorneys presented possible conflicts of interest.

A Special Counsel can investigate members of Congress, after all.

[jjotto]

Very interesting!

(Mencken knows about some of this kind of stuff.)