Mueller's difficult problem:

Constitution curbs his reach

Special Counsel Robert Mueller's threat to subpoena President Trump to testify before a federal grand jury appears to violate the Constitution's doctrine that only Congress may engage a president in adversarial legal proceedings. For Mr. Mueller to justify such a subpoena, he would have to show that the president's testimony is urgently required in a case against a person other than the President. But even so, such a claim would stand upon dubious legal ground.

Because of the fact that there is the potential that a President's testimony may be used against him or her in a referral to a Congressional impeachment inquiry, there is immediately an adversarial potential. But the Constitution says nothing about either the Justice Department or a Special Counsel developing possibly incriminating or defamatory material against a President. Yet it does implicitly entrust Congress to be competent to remedy possibly impeachable offenses. This should be seen in light of the fact that Congress has all the investigatory power it needs in order to prepare for any impeachment and trial.

It is well worth noting that the founders pointedly made removal by the Senate a difficult procedure, requiring a vote of two-thirds for removal of a president. On what basis then does the Justice Department or Special Counsel proceed? Is there an idea that these offices will make removal somehow more easy? Or is the Special Counsel operating in a political sense with the design of making President Trump and Republicans look bad in the upcoming midterm elections? Neither of these possibilities represents a valid constitutional remedy.

In addition, the President's lawyers may well argue that the authorization for the Mueller probe is constitutionally flawed.

Deputy Attorney General Rod Rosenstein appointed Mr. Mueller to continue ousted FBI Director Comey's national security investigation of the Trump campaign. Specifically, Mr. Rosenstein authorized the Special Counsel to investigate

"(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a). (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters."

Although the FBI would have been permitted to conduct a good-faith national security inquiry before the election, Mr. Rosenstein's wording is problematic, as it seems to authorize a usurpation by the Justice Department of Congress's constitutional prerogative. That is, the wording appears to raise concern over the legitimacy of the President's election, and that concern is definitely not within the purview of the Justice Department; that issue can only be handled by Congress. It is notable that Mr. Rosenstein authorized FISA warrants involving the Trump campaign after the election had been decided, indicating Mr. Rosenstein has an elastic inerpretation of constitutional limits.

Herewith some relevant passages of the Constitution:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

"Sole power" does not mean the Senate shares pre-impeachment investigative power with special prosecutors. Further, we see that the Constitution only envisions an adversarial process with the judicial branch after any removal by the Senate. Hence Mueller's threat to subpoena the President, along with an implicit threat to "immunize" him to force his testimony, is an egregious offense against the rule of Constitutional law.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected...

The President has a complete, unfettered right to relieve any Executive branch employee of his duties. The Constitution is silent on appointing special counsels to look into his or her staffing decisions. If there is sufficient concern on such a matter, Congress is full empowered to deal with it under the "high crimes and misdemeanors" clause. Otherwise, he or she is to serve the full four years, regardless of any maneuverings by the Justice Department or special counsel.

There is also the fact that the President is designated the chief law enforcement officer, as well as the person responsible for the hiring of all employees of the federal government. There is no question that President Trump had the right to fire Mr. Comey. The Constitution does not mention prosecutorial mind-reading to check on whether a President's motive is worthy or not, though clearly Congress may, if it wishes, examine the matter of motive.

he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

It is important to understand that a President does not report to the federal government. Though the point is often forgotten, a President is the product of the states, who, in accord with limited state sovereignty, make the final decision as to who is to become President. Thus, a special counsel's appointment by federal employees could, in any clash with a President, violate not only the state rights amendment but the clause for selection of a President.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certifi cates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the fi ve highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by B

Also,

That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fi xed for the Election of the President, and should transmit their Votes certifi ed, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution. By the unanimous Order of the Convention

If the President were to agree to a Mueller subpoena, there would be concern that he would be violating his oath to uphold the Constitution.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:- “I do solemnly swear (or affirm) that I will faithfully execute the Offi ce of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

In the treason and high crimes clause, there is no reference to either the Justice Department, the federal courts other than the chief justice, or a special counsel.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

These lines make clear that a President cannot be tried by a jury and hence is immune from prosecution by the federal judicial branch or any of its functionaries, such as special counsels. Congress is deemed to be fully competent to scout out treason or high crimes and to remedy such a finding with removal.