By Tessa Berenson
May 25, 2018

One of the founders of the conservative Federalist Society is advancing a controversial legal theory that Robert Mueller’s special counsel investigation is unconstitutional.

In a guest editorial in the Wall Street Journal earlier this month and a call with reporters Friday afternoon, Northwestern law professor Steven Calabresi argued that Mueller cannot oversee such a broad investigation because he was not confirmed by the Senate.

Calabresi argues that under the Appointments Clause of the Constitution, an official overseeing the probe would be a “principal officer,” and thus would have to be someone who was appointed by the president and confirmed by the Senate.

“[Mueller] is a principal officer, and since he has not been nominated by the President and confirmed by the Senate, everything he has done since May 1, 2017 has been unconstitutional and has been illegal,” he told reporters on the call, which was hosted but not endorsed by the Federalist Society.

Critics say the argument is far-fetched, though not implausible.

“It is a good-faith argument but I remain skeptical on its chances in the courts,,” Jonathan Turley, professor at The George Washington University Law School, told TIME in an email. “[Mueller] is closely tethered to the discretion of the Deputy Attorney General and operates only within the confines established by the mandate.”

The argument rests on a 1988 Supreme Court case called Morrison v. Olson, in which the court held that an independent counsel was an “inferior officer,” and not a principal, because the office was “limited in jurisdiction” to “certain federal officials suspected of certain serious federal crimes.”

But Calabresi argues that Mueller’s probe fails that test, since it has broadened beyond a limited investigation into a broader one that has so far brought charges on potential money laundering by former Trump campaign head Paul Manafort, low-level campaign aides making false statements to investigators about their contacts with Russia and propaganda efforts by Russian operatives.

Mueller reports to Deputy Attorney General Rod Rosenstein, since Attorney General Jeff Sessions recused himself from the investigation. But even though Rosenstein was confirmed by the Senate — making him a “principal officer” — Calabresi argues that he’s not supervising Mueller’s work closely enough to count under the Appointments Clause.

The stakes of the argument are high. If Mueller’s appointment really is unconstitutional, then Calabresi argues all of the actions he’s taken since his appointment in May of 2017 are “null and void,” including “all of the indictments he has brought, all of the plea bargains he has entered into, all the searches he has conducted, his phone logging of Michael Cohen and subsequent of referral of Michael Cohen to the Southern District of New York for prosecution, and any other governmental actions he has taken.”

The Justice Department declined to comment on the argument.

Manafort has already brought a version of this question before a court and lost. After Manafort was indicted on charges related to his lobbying efforts on behalf of Ukraine, his lawyers filed a motion in the D.C. District Court arguing that Mueller had exceeded the limits of his authority.

Judge Amy Berman Jackson dismissed Manafort’s motion, saying it “falls squarely” within Rosenstein’s original memo to Mueller on the probe, which gave him the authority to look into any matters which “may arise” from an investigation into Russian meddling in the 2016 election, though her decision was based on legal statutes and not the constitutional question Calabresi raises.

“It was logical and appropriate for investigators tasked with the investigation of ‘any links’ between the Russian government and individuals associated with the campaign to direct their attention to him,” she wrote of Manafort, noting: “The Acting Attorney General had the authority under the applicable statutes and regulations to define the Special Counsel’s charter broadly.”

John Q. Barrett, law professor at St. John’s University, notes that the independent counsel statute that the Supreme Court upheld in Morrison v. Olson was even more broadly designed than Mueller’s position. “The greater includes the lesser,” he says. In other words, if an independent counsel with more expansive power is constitutional, then Mueller’s special counsel position likely is too.

But Calabresi says Mueller’s actions over the past year have shown he’s become too powerful under the definition set forth in Morrison, regardless of what regulation says.

“With all due respect to the statute and to the CFR [Code of Federal Regulations], I think Mueller is much too important an officer to be called an inferior officer,” he said. Since his appointment more than a year ago, Mueller has indicted 19 people and secured five guilty pleas. It’s all, according to Calabresi, “fruit of a poisonous tree.”

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