White House counselor Kellyanne Conway’s husband George Conway has written an article that adamantly defends the constitutionality of special counsel Robert Mueller’s probe into Russia’s alleged connection with President Donald Trump’s campaign in the 2016 election.
The piece, “The Terrible Arguments Against the Constitutionality of the Mueller Investigation,” published Monday on the Lawfare legal blog, opens with a critique of Trump’s tweets about the probe. The president has railed about the investigation as “totally unconstitutional.”
The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
Conway, a lawyer, notes that Trump’s argument likely came from “conservative legal scholar and co-founder of the Federalist Society, professor Steven Calabresi.”
“Unfortunately for the president, these writings are no more correct than the spelling in his original tweet. And in light of the president’s apparent embrace of Calabresi’s conclusions, it is well worth taking a close look at Calabresi’s argument in support of those conclusions,” writes Conway.
Conway then cites Calabresi’s argument ― as detailed in a Wall Street Journal op-ed ― that Mueller’s probe is “null and void” because it “violates the Appointments Clause of the Constitution, Article II, Section 2, Clause 2.” Conway notes that the late Supreme Court Justice Antonin Scalia considered U.S. attorneys “inferior officers” under the Constitution, and says the special counsel also is an inferior officer. That, he maintains, defeats the claim that Mueller’s appointment is unconstitutional.
“In short, there is no serious argument that Special Counsel Mueller’s appointment violates the Appointments Clause specifically or the separation of powers generally,” writes Conway.
Chip Somodevilla via Getty Images
It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. 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.
Despite his wife’s association with the president, Conway has been critical of Trump, frequently tweeting distaste or counterarguments to Trump’s claims.
It’s unclear what Kellyanne Conway thinks about her husband’s opinions. Two months ago, when she was asked about her husband’s criticisms of the president by CNN’s Dana Bash, she described what constitutes a “difference of opinion” between spouses, and later tweeted that the question was “cheap & irrelevant.”