This column by ACRU General Counsel Ken Klukowski was published June 13, 2017 by Breitbart.
Rep. Adam Schiff (D-CA) threatened to have Congress appoint a special counsel, despite the Supreme Court’s decision that it is unconstitutional for Congress to appoint any federal official. This decision came from a case so famous that the lawmaker almost certainly learned it as a student at Harvard Law School.
Schiff tweeted Monday, “If President fired Bob Mueller, Congress would immediately re-establish independent counsel and appoint Bob Mueller. Don’t waste our time”:
The Harvard Law professors who taught the ranking member of the House Select Intelligence Committee are probably disappointed with their former student because the Supreme Court in 1976 unanimously said Congress would violate the Constitution by doing so.
In the 1970s, Congress created the Federal Election Commission (FEC), which gave them the power to appoint two of its six commissioners, but the statute was challenged on several constitutional grounds.
In Buckley v. Valeo, the Supreme Court ruled that the Constitution’s separation of powers requires that the only branch of government that can create a federal office—Congress, through passing legislation — is also the one branch that can never then appoint someone to fill the office it had just created. Congress must, instead, specify in the statute who can appoint someone to fill that office, choosing between the president, one of the president’s senior subordinates, such as the attorney general or other cabinet officers, or the courts.
Quoting the rule from its 1926 case, Myers v. United States, the Court declared, “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.”
Consequently, the Court in Buckley struck down that provision in federal law for violating the Constitution’s Appointments Clause. Following that decision, all FEC commissioners are nominated by the president and confirmed by the Senate.
That is precisely the issue here. Schiff is threatening to take action that the Supreme Court has clearly and repeatedly held unconstitutional.
This sets aside the fact that the independent counsel statute — the Ethics in Government Act of 1978 — is unconstitutional, upheld by the Supreme Court in its 1988 case, Morrison v. Olson, over the dissent of Justice Antonin Scalia. But political dramas in subsequent years proved Scalia’s argument correct on why a prosecutor, fully independent from the elected head of the executive branch, is incompatible with the Constitution’s structure of American government.
Now, many leading liberal judges agree that while the Constitution allows special counsels, it does not allow independent counsels. In other words, Schiff is threatening to violate the Constitution not once, but twice, one in open defiance of the Supreme Court.
This is all political theatre. Given these Supreme Court cases, Congress would never pass such a statute. If it did, President Trump would promptly and properly veto it, and there is zero chance that even a Democratic-controlled Congress could muster a two-thirds supermajority to override the veto.
Schiff should know all this, leading skeptics to conclude his entire threat should be chalked up as more evidence of Democrats’ exacerbation of partisan tensions in the nation’s capital.