Civil Discourse Now

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Mr. Mueller Could Be Appointed Special Master in 16-1464

   In Bailey, et al v U.S., et al, SCOTUS docket 16-1464, Petitioners bring an action for an independent investigation of the 2016 election and, if Russian interference in the election affected the outcome of the election, an Order the election be declared void.  Disclosure: I am counsel for Petitioners in Bailey, 16-1464.
   A frequent question: why the need for an independent investigation when Special Counsel Robert Mueller was appointed on May 17?
   As previously noted, Special Counsel, subject to provisions of  Federal law. 28 C.F.R. sec. 600, et seq., can be “removed” from office by the Attorney General (“AG”) of the United States.  28 C.F.R. 600.7(d). The AG is subject to summary dismissal by the President. AG Sessions recused himself, thus Deputy AG Rod Rosenstein is responsible for matters related to Russia.  If Mr. Mueller’s investigation is seen as a threat by Trump, Trump can order Rosenstein to fire Mueller, in a scenario similar to the 1973 Saturday Night Massacre, when President Nixon fired the AG, then the Deputy AG, before someone would fire Special Prosecutor Archibald Cox.
   Here, a lot of time could be lost.
   Also, at the end of Mr. Mueller’s investigation, he can issue a report, seek prosecution of persons who have committed criminal acts, or seek discipline for Federal employees. A Special Master would issue a report to the Supreme Court.
   The Supreme Court has the power, within its equitable jurisdiction, to order the election of 2016 void
   Another question: Cannot Congress provide statutory protection to Special Counsel? Any action by Congress to limit the President’s authority in regard to a job in the Executive branch is subject to the “political question” doctrine as being “nonjusticiable,”or, incapable of determination by a court. The political question doctrine is “essentially a function of the separation of powers ... which recognizes the limits that Article III imposes upon courts and accords appropriate respect to the other branches’ exercise of their own constitutional powers.”  Zivotofsky ex rel Zivotofsky v. Clinton, 556 U.S. 189, 202 (2012).
   The Federal government consists of three branches, distinct from one another.  The Legislative branch (U.S. Const, Art. I), the Executive branch (U.S. Const. Art. II, Sec. 1), and the Judicial branch (Art. III) are co-equal. When disputes arise within a branch, the inclination is to allow that branch to resolve those disputes. If the President has a beef with the AG, the President can fire the A.G.  The Senate or House resolve disputes about their rules.  This is the essence of the “political question” doctrine.
   A third question: Could SCOTUS appoint Mr. Mueller as Special Master? I have found yet to find authority (and someone better-versed in Federal employment law will correct me if I am wrong) to bar that appointment, if Mr. Mueller first would resign as Special Counsel. Mr. Mueller as Special Master would save time and resources, and would protect Mr. Mueller from retaliatory action by Trump.
   I arose this morning and checked the SCOTUS docket for 16-1464. There appeared to be no action yet by the conference held on the case since the case was set for end-of-summer conference.
   If you agree that, at very least, the case should be heard on whether a Special Master should be appointed, I recommend you visit

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