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Only courts can rein in 'King Rosenstein'

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 MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE. 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 RosensteinRod RosensteinRosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office Trump turns his ire toward Cabinet members MORE. 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 TrumpDonald TrumpBlinken holds first calls as Biden's secretary of State Senators discussing Trump censure resolution Dobbs: Republicans lost in 2020 because they 'forgot who was the true leader' MORE adviser Roger StoneRoger Jason StoneWould Trump have gotten away with a self-pardon? History will never know Trump's pardons harshly criticized by legal experts Presidential pardons need to go MORE. 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.”

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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.

Howell says not to worry because the office of the special counsel was created by regulations that the attorney general could swipe away any day to take direct charge of Mueller. Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsDOJ rescinds 'zero tolerance' border policy behind family separations With another caravan heading North, a closer look at our asylum law Harris to resign from Senate seat on Monday MORE, she says, could even end his voluntary recusal and fire Mueller. Yeah, right. It is an irrelevant argument anyway, since all confirmed and appointment officers can be fired at will. She also ignores the inconvenient fact that it was the very firing of the FBI director that triggered appointing the special counsel, undercutting her rationale that Mueller could easily be fired.

The Mueller appointment, in particular, is extraordinary. His full scope and powers reside in a secret document. He operates across jurisdictions, can indict foreign officials, and was not appointed by the attorney general himself. If Howell is right, the attorney general, without Senate approval and by his own regulations, can establish independent prosecutors with vast budgets, secret powers, and no effective oversight by the president or Congress. These are powers denied even to the president in the Constitution, but they have landed in the hands of King Rosenstein.

The plain fact is that this special counsel has been given such broad authority that his appointment should absolutely require Senate confirmation. True, his term is not limited because it is unlimited. His scope is not just national but even international. Firing him cannot be accomplished without likely triggering an impeachment threat, making him the single hardest person to fire despite regulations that technically permit it. He is perhaps the only appointment with the power to upend the national election. Judges must put aside legal fictions to face the reality of this unprecedented and unconfirmed government appointment.

The second major argument dismissed by Howell is that Congress has not explicitly authorized the position and so there is no statutory authority for the appointment. She finds that because the statute allows the attorney general to hire special attorneys to assist him, there was no need for Congress to specifically authorize the appointment of a special counsel, as it is such a temporary and limited position. By her reasoning, when lawmakers let the independent counsel statute expire out of exasperation with the creatures they had created, Congress actually increased rather than decreased the authority of the attorney general to do exactly the same thing, minus proper judicial and legislative oversight.

Howell saves her weakest arguments for last, getting around the excepting clause of the Constitution that requires even inferior officers to be appointed only by the president, the courts of law, or the heads of departments. Here, she jumps through hoops to define recusal as the same thing as disability so that Rosenstein could step in as though the attorney general were incapacitated. Clearly that is not what the vacancy statute intended. Howell eventually concludes that, the excepting clause notwithstanding, this is a big government and lots of people delegate lots of responsibilities, so the attorney general could just delegate the appointment anyway. So much for the Constitution.

It is a well written opinion, but it is deeply flawed when held up to the light of reality. Its implications are its weakness. Under the ruling, a crafty deputy attorney general could appoint the most powerful prosecutor in the land with an unlimited term, hidden authority, independent budget, and with little oversight by the president or Congress just by declaring the attorney general to have a conflict and therefore to be disabled. Or an attorney general looking to sink a president can simply say his hands are tied and delegate the process to folks immune from direct authority.

Come to think of it, one of those alternatives is exactly what we are living through right now, and it has bitterly divided the country. Given that an impeachment trial requires two-thirds of the Senate, the appointment of independent counsels with a majority vote of the Senate makes sense. It would prevent the runaway appointments and prosecutions that have been the ignominious hallmark of special counsels. It would put the Constitution back in the driver seat, and end these secret processes that have allowed the hijacking of our government by unelected officials.

I hope this case gets to the Supreme Court with all deliberate speed so the ruling can be overturned. The entire country knows that one presidential campaign was treated one way and another was treated much differently. Rosenstein and Mueller have become blind to the corrosive effect of this unfair justice. Ending the appointment of the special counsel on grounds that it needed Senate confirmation could be the best way out of the mess created by this backdoor granting of power.

Mark Penn is a managing partner of the Stagwell Group, a private equity firm specializing in marketing services companies, as well as chairman of the Harris Poll and author of “Microtrends Squared.” He served as pollster and adviser to President Clinton from 1995 to 2000, including during Clinton’s impeachment. You can follow him on Twitter @Mark_Penn.