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VERIFY: Was Mueller's appointment to special counsel unconstitutional?

Pres. Trump tweeted that Robert Mueller's appointment to the special counsel was unconstitutional. Is that true?
Credit: Alex Wong/LUDOVIC MARIN/AFP/Getty Images
President Donald Trump speaks during a joint press conference with French President Emmanuel Macron on April 24, 2018. | FBI Director Robert Mueller speaks during a news conference at the FBI headquarters June 25, 2008 in Washington, DC.

QUESTION:

Pres. Trump tweeted that Robert Mueller's appointment to the special counsel was unconstitutional. Is that true?

ANSWER:

No. The president isn't given the power to appoint a special counsel. The attorney general is.

SOURCES:

Constitution Article II Section II (page 13-14)

28 Code of Federal Regulations Part 600 "General Powers of Special Counsel"

Rod Rosenstein's Letter of Appointment - ORDER NO. 3915-2017

Congressional Research Service- "Independent Counsels, Special Prosecutors,

Special Counsels, and the Role of Congress"

PROCESS:

On Pres. Trump's 500th day in office, he took another swipe at special counsel Robert Mueller's probe into Russia and whether it interfered in the 2016 election.

"The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!" the president tweeted.

The claim unleashed a stir of speculation on social media with people wondering whether that's true.

Under Article II Section II of the Constitution, the president is given the power to appoint "public ministers and consuls, judges of the supreme court and all other officers" with Congressional approval.

Pres. Trump is leaning on this clause, dubbed the "Appointment Clause," to claim he should have been the one to appoint Mueller and possibly unhinge the investigation.

But that's not so. Special counsels, or prosecutors, are not listed in the Appointment Clause and therefore, not within the presidential powers.

The counsel can't be appointed by the president. Instead the counsel is appointed by the attorney general or acting attorney general.

Since Attorney General Jeff Sessions recused himself from the Russia probe, the task fell on Rod Rosenstein, the deputy attorney general. Rosenstein is also the only person able to fire Mueller.

WUSA9 can Verify Pres. Trump's tweet calling Mueller's appointment unconstitutional isn't true.

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