http://thehill.com/opinion/judiciary/402...rosenstein

Mark Penn, Clinton pollster, and no fan of special prosecutors questions the constitutionality of Mueller's appointment.

"The expression “where there is smoke, there is fire” appears to date to 43 B.C., but it sure applies to a decision by District Judge Beryl Howell. It seems less a court opinion and more an opposition brief to knock down any challenges to the authority of special counsel Robert Mueller. Yet its length at 92 pages and its reasoning suggest quite the opposite. This ruling blows around so much smoke that there is likely plenty of fire behind the argument of there being no basis for the appointment of the special counsel by Deputy Attorney General Rod Rosenstein. Hopefully the decision will be swiftly appealed all the way up to the Supreme Court.

The ruling comes from the planned defiance of a subpoena of Andrew Miller, an associate of political strategist and former Donald Trump adviser Roger Stone. Attorneys for Miller argued that the Mueller appointment is unconstitutional because he is an unconfirmed principal federal officer, because Congress has not explicitly authorized the position, and because Rosenstein had no authority to appoint him. The decision begins with a detailed history of the role of the attorney general, which began as a limited position that grew in scope and power. Today, the job, in addition to advising the president on the law, includes appointing U.S. attorneys with the advice and consent of the Senate and hiring “special attorneys.”



But these special attorneys were never meant to have unimpeded power greater than U.S. attorneys without confirmation. In fact, just about everyone in the Justice Department with any substantial power requires Senate approval. This includes all assistant and associate attorney generals, and those who report directly to Rosenstein, with the exception of Mueller. With more than 1,200 administration officials across the government, including all inspector generals, requiring confirmation, it would be near impossible to find anyone with the vast authority and independence of Mueller without Senate approval...."