Was Robert Mueller's Appointment Illegal? One Expert Thinks So

Special counsel Robert Mueller has begun issuing indictments in his Russia investigation. One law professor is arguing that the probe should not be taking place because Mueller was appointed illegally. (Photo by Alex Wong/Getty Images)

President Donald Trump doesn't need to worry about the indictment against his former campaign chairman by special counsel Robert Mueller for one big reason: Mueller's appointment to the Russia probe isn't constitutional, one legal scholar is arguing.

Douglas Kmiec, a Pepperdine University professor of constitutional law, is arguing that the president could quickly put an end to the investigation haunting his administration by doing away with Mueller, who he says skirted the proper channels to be hired in the first place.

"Everyone is focused on can he [Donald Trump] fire Mueller," Kmiec told Newsweek. "You don't have to fire someone who wasn't properly appointed in the first place."

Kmiec claims that Mueller is exercising a broad scope of authority similar to a principal officer or Cabinet member that has to be approved and confirmed by the Senate after being nominated. Instead, Mueller was appointed through an order handed down by Deputy Attorney General Rod Rosenstein.

"The only time you need a special counsel is when the Department of Justice is incapable of performing its job because the highest levels of the Department of Justice are recused with regards to a criminal matter," Kmiec said. "What is the basis for appointing a special counsel when there is no real evidence?"

Attorney General Jeff Sessions recused himself in July from overseeing the Russia probe, which led to the appointment of Mueller. In his Senate confirmation hearing, Sessions said he had not communicated with the Russians when in fact he had met with a Russian official twice. Rosenstein then appointed Mueller in May to look into the Russians' election meddling and any links between President Donald Trump's campaign and Russia.

The appointment of Mueller came after former FBI Director James Comey revealed that Trump had asked him to halt the investigation into Michael Flynn, his former national security adviser. The first indictments came on Monday when former Trump campaign manager Paul Manafort and his associate Rick Gates were charged with money laundering and many other crimes.

One legal expert says Kmiec's argument is flawed.

"The idea of Mueller is unconstitutional is preposterous," said Neal Katyal, a professor of national security law at Georgetown University. "I can't imagine such an argument flying in the courts."

Trump tweeted about the special counsel's investigation on Sunday, calling it a witch hunt and saying there is no evidence of his campaign colluding with Russia.

...the Uranium to Russia deal, the 33,000 plus deleted Emails, the Comey fix and so much more. Instead they look at phony Trump/Russia,....

— Donald J. Trump (@realDonaldTrump) October 29, 2017

Trump's hasty firing of Comey have some speculating that Mueller's time could be up as well.

"President Trump has acted in a conditionally reckless manner before," Katyal said. "Anything is possible when it comes to him. Firing Mueller would create a constitutional crisis."

Many Americans plan to march in the streets if Trump fires Mueller, a popular former FBI director. Republicans have called for Mueller's resignation due to his friendship with Comey, his FBI successor. But if Trump fires Mueller, it could lead to his impeachment, said Jed Shugerman, a professor at Fordham University Law School.

"And we should all be thinking about what the appropriate legal steps would be, starting with impeachment [and] including ultimately an indictment for the obstruction of justice," Shugerman said.