Attorney George Conway, husband of White House adviser Kellyanne Conway, has repeatedly made known on Twitter that he is not fond of President Donald Trump.
But in a Monday essay published in Lawfare – an esteemed legal blog – the lawyer took a no holds barred approach in dismantling the president’s “meritless legal position” that the special counsel investigation is unconstitutional.
Conway’s essay was in response to Trump’s June 4 tweet attacking Robert Mueller’s Russia probe.
“The appointment of the Special Councel is totally UNCONSTITUTIONAL!” Trump wrote. “Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!” (The spelling was later corrected.)
Conway’s essay – “The Terrible Arguments Against the Constitutionality of the Mueller Investigation” – took aim both at the president and the lawyer from whom he speculates Trump borrowed the argument.
“The ‘constitutional’ arguments made against the special counsel … have little more rigor than the tweet that promoted them,” Conway wrote. “Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers — regardless of their politics — owe a duty to abjure.”
That the president would latch on to such a poor argument, Conway said, is not surprising because “ as a non-lawyer, he wouldn’t know the difference between a good one and a bad one”.
Conway, who at one point was reportedly under consideration to lead the civil division within the Justice Department, speculated that Trump got the idea that Mueller’s appointment was unconstitutional from the legal scholar Steven Calabresi, a professor at Northwestern University’s Pritzker School of Law and a co-founder of the Federalist Society.
Conway then set his sights on Calabresi’s primary contention, which is that Mueller’s appointment by Deputy Attorney General Rod Rosenstein was unconstitutional, as only the president can appoint an officer of the court with the degree of power granted to Mueller.
“Unfortunately for the president,” Conway wrote, “these writings are no more correct than the spelling in his original tweet.”
Calabresi rests on the 1988 Supreme Court decision in Morrison v. Olson that upheld a post-Watergate procedure for appointing an “independent counsel”, which the Post notes “required that, to qualify as an inferior officer, the independent counsel must have bosses who can remove them and hold them to ‘certain, limited duties.’”
Mueller is supervised by Rosenstein, who also has the power to remove him.
Also mentioned in Calabresi’s argument is that the scope of Mueller’s investigation is too wide – a point contradicted by the U.S. District Court for the District of Columbia, which ruled in May that Mueller has remained within the bounds.
“So not only does Mueller have a boss, and not only is the boss keeping tabs on Mueller, but, according to this judicial decision, Mueller is also faithfully following his boss’s orders,” Conway wrote. “That disposes of Calabresi’s Appointment Clause contentions.”