Constitution Compels Sessions Fire Mueller From Non-Collusion Cases
Sessions' recusal does not prevent Sessions from removing Mueller's power over non-collusion cases that do not concern the 2016 campaign. Indeed, the Constitution compels Sessions limit Mueller.
Attorney General Sessions can still fire Mueller for any investigation, indictment or other special counsel action that does not involve the 2016 election campaign. Amazingly, that includes almost every action Mueller has taken and is reported to be contemplating taking. By doing so, Sessions would be doing what the Constitution compels: enforcing the Appointments Clause of the Constitution, exercising his Constitutional obligation to “direct and supervise litigation” conducted by the Department of Justice, and ensuring the appropriate use of the federal grand jury. Sessions limiting Mueller to the 2016 campaign would also be restoring confidence in democratic institutions, restoring public faith that democratically elected officials are governing the country, and reassuring the public that we do not have “special” offices of “special” counsel who can act as Stasi style, Beria-minded Inquisitors, beyond the reach of democratically elected officials, roaming the halls of federal grand juries investigating, search-warranting, spying, subpoenaing, and indicting as they please, by an ethically-challenged, partisan-skewed political profile of prosecutors.
First, a read of Sessions’ recusal: Sessions only recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This recusal letter limits the scope of Sessions’ recusal to the 2016 campaigns; it does not authorize Sessions’ recusal for anything beyond that. Constitutionally, Sessions has a “duty to direct and supervise litigation” conducted by the Department of Justice. Ethically, professionally, and legally, Sessions cannot ignore his supervisory obligations for cases that are not related to the “campaigns for President.”
Second, the Constitution’s Appointment Clause requires the democratic process control the appointment of all but “inferior” officers. The Appointments Clause requires that no one be appointed to the executive branch unless they are first recommended by the President, and the Senate reviews and consents. This insures the democratically elected officials choose the people's principal officers of the executive branch. The only exception is for "inferior" officers of the executive branch. A special counsel can be considered an inferior officer only if he stays within the "narrow" limits of his letter of authorization, a letter that itself must be read "strictly" to limit the special counsel's power. The Appointments Clause thus prohibits a special counsel from deviating from the subject matter limits of his letter of authorization.
Mueller's letter of authorization limited the scope of his investigative power by subject matter and by time: the subject matter constricted to Russian government collusion with the Trump campaign and the time period being the Trump campaign. Of course, Mueller has authority to investigate any effort to obstruct his investigation, such as crimes that "directly arise" from his investigation. Disturbingly, to date, Mueller has rarely abided by the restrictions of his office. As a federal district court held: “the special counsel cannot act outside the bounds of either his limited jurisdiction or without regard for Department of Justice policies and regulations. As such, the Special Counsel does not wield unlimited authority.” Indeed, a special counsel’s “authority is therefore confined to the narrow objective of accomplishing the specific mandate he was given.”
Therefore, Sessions' explicit and express removal of Mueller's actions over non-Russian government collusion campaign allegations would reaffirm the Appointments Clause. There is probably no greater domestic power of the executive branch than the power to access a grand jury to indict and subpoena, the power to access the tax records of any individual in the country, the power to request warrants to spy on someone’s activity, the power to obtain judicial assent to search and seize, and the power to simply threaten any of the above. Session's removal of those non-collusion cases from Mueller's purview will be Sessions affirming his own Constitutional duties and reinforcing the Constitutional limits on Mueller's authority to act.
Third, Mueller’s authorization is limited by law, and Sessions can revoke any part of it he wants that does not directly concern the campaign. Contrary to anti-Trump critics, Mueller’s mandate was not “get Trump,” “indict anybody who ever worked for Trump,” or “cover up spying and illicit activity against Trump by Mueller’s FBI and DOJ friends who worked for Obama.” Mueller’s authority is limited to “links between the Russian government and individuals associated with the campaign of President Donald Trump,” and those acts that "directly arise" from collusion or directly obstruct the Mueller investigation. This only partially overlaps with Sessions’ recusal: Sessions has recused as to only those investigations and indictments that concern Russian government collusion by “the campaign of President Donald Trump”; any subject matter that does not concern “the campaign,” is a subject matter that Sessions can, and Constitutionally must, directly supervise Mueller. This includes, as it must Constitutionally, Sessions power to revoke Mueller’s authority at any time in cases that do not concern the campaign itself.
Fourth, quite amazingly, almost all of Mueller’s actions taken to date, and almost all reported to be under public consideration, are outside the scope of Sessions’ recusal. Manafort was not indicted for any campaign action; his indictment concerns mostly pre-campaign conduct, and all of it concerns conduct that is not based on any action Manafort took as part of the campaign. The same applies to the Gates indictment. The same applies to the Flynn indictment. That is the key trilogy of indictments Mueller has brought; only Papadopolous’ plea is within the scope of the Sessions’ recusal. Indeed, even the indictment of the Russian trolls made no allegation against either campaign of either candidate, and, as such, is arguably also outside the scope of Sessions’ recusal. Since that social media troll indictment is mostly for p.r. purposes, and not a serious indictment (given it was known no defendant would ever appear in court to legally or factually contest it), it is mostly irrelevant anyway.
Fifth, this means Sessions can revoke Mueller’s authority to act outside of any campaign-based investigation or indictment. Critically, this would restore Mueller’s office to its Constitutional constraints; as Mueller’s current conduct reflects, his appointment violates the Appointments Clause of the Constitution. Sessions can remove Mueller’s authority to request search warrants, subpoena grand jury testimony, subpoena grand jury records, target individuals, or issue indictments unless the subject matter is constricted to the campaign itself. Sessions can return power over the existing indictments to regular DOJ prosecutors, as both the Constitution and the statutes compel. Sessions can dismiss existing indictments as an excess of authority of Mueller’s team (a team already infamous for acting outside their authority in the past, whether it be ethical abuses or overbroad, unconstitutional interpretations of federal criminal law). Sessions could start with dismissing the indictment of General Flynn.
Firing Mueller on the non-campaign related investigations would restore Mueller’s special counsel’s office to its intended Constitutional constrictions, remove the Beria-style investigative techniques witnessed over the past year (the “find me the man, and I will find you the crime” style of Mueller’s team to date), and restore public faith that our Constitutional democracy is still a Constitutional democracy, not a Deep State hierarchy, as recent polls suggest the public now believes. Time for Sessions to do what McCabe chose not to: uphold his oath. He can do so by firing Mueller from non-collusion cases.