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Wednesday, September 5, 2018

I am not alone in arguing Robert Muller is operating extra-Constitutionally

WASHINGTON - FBI Director Robert Mueller testifies during a hearing before the House Judiciary Committee July 26, 2007 on Capitol Hill in Washington, DC. The hearing was held to examine whether the FBI have misused their power. (Photo by Alex Wong/Getty Images)

In a recent post, I published a letter to President Trump arguing that Robert Muller is acting without Constitutional authority and hence all his actions are void.  I am not alone in making this argument but am joined by respected legal authorities Steven Calabresi, one of the founders of the Federalist Society and a law professor at Northwestern and Douglas Kmiec, who teaches constitutional law at Pepperdine University:



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Sunday, August 19, 2018

The National Labor Relations Board, CarMax and Me


The NLRB has five Members and is presently controlled by a Republican majority. The NLRB primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms.

Under the President Obama-controlled National Labor Relations Board (“NLRB”), a rule was promulgated in 2014 know as the Purple Communications rule. That rule said that Employees who have been given access to their Employer’s email system for work-related purposes have a presumptive right to use that system for Section 7–protected communications on nonworking time. Enacted in 1935, Section 7 refers to the National Labor Relations Act, §7 which guarantees Employees the right to engage in “concerted activities for the purpose of . . . other mutual aid or protection".

It was under that Purple Communications rule that I, on May 1, 2016, when employed at CarMax, sent out seven thousand, five hundred (7,500) emails to CarMax Sales Associates spread out over 159 stores in 38 states.  The email raised wage and working conditions concerns and produced a remarkable response to a Google Forms questionnaire.  Of course, CarMax fired me five days later on May 6, 2016.  My firing is a story for another day.

Why all this is relevant now is this:  Under the President Trump-controlled NLRB, a case has arisen which the Republicans on the NLRB are using to repeal the Purple Communications rule.  This would allow Employers to block use of company email systems for Employee communications regarding union or other protected concerted activity.

Graciously, the NLRB has requested Amicus briefs on whether to repeal the Purple Communications rule.  As I, due to my unique experience at CarMax, have a singular perspective on the inestimable value of maintaining the Purple Communications rule, I have told my CarMax story in my Amicus brief. Through the Exhibits to the Brief are long, the Brief itself is short and makes for an illustrative story of the corrosive power of soulless corporations using Employee-controlling technology to maintain their unfair hegemony which renders the 1935 NLRA virtually meaningless today. Caveat Operarius!

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Thursday, July 5, 2018

Mr. President, Robert Mueller is operating without Constitutional Authority

I recently wrote a letter to the President as I believe that Mr. Mueller is acting without Constitutional Authority and hence all his actions are void.  The text of the letter follows:
_________________________________

July 3, 2018

President Donald Trump
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Re: Deputy Attorney General Rosenstein’s Appointment of Robert Mueller Was Constitutionally Void Ab Initio

Dear Mr. President,

I write to assert that based upon the recent holding by the U.S. Supreme Court on June 21, 2018, in deciding the case of Lucia v. Securities and Exchange Commission, Docket No.: 17-130, there is no doubt that the appointment of Robert Mueller by Acting Attorney General Rosenstein was both Constitutionally and statutorily a void act.  As a result, all actions taken by Mr. Mueller are void ab initio.  Let me explain:

I.  There Only Three Classes of Federal Agents

In  Lucia, the Court addressed the question as to: “whether the [SEC]'s [Administrative Law Judges] are "Officers of the United States" or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing "Officers." Only the President, a court of law, or a head of department can do so. See Art. II, §2, cl. 2”.  In particular, Article II, §2, cl. 2 states:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Regarding the distinction between “all other Officers of the United States” and “such inferior Officers” that Congress may delegate the appointment to “the President alone, in the Courts of Law, or in the Heads of Departments”, the Court in Lucia stated: “Only the President, with the advice and consent of the Senate, can appoint a Principal officer; but Congress (instead of relying on that method) may authorize the President alone, a court, or a department head to appoint an Inferior officer.  See ibid.”

II. Mr. Mueller is Not Simply [an] Employee of the Federal Government

Lucia next addresses the question of who is an “Officer” and who is a mere “employee of the Federal Government” holding:
Two decisions set out this Court's basic framework for distinguishing between officers and employees. United States v. Germaine, 99 U. S. 508, 510 (1879) held that "civil surgeons" (doctors hired to perform various physical exams) were mere employees because their duties were "occasional or temporary" rather than "continuing and permanent." Id., at 511-512. Stressing "ideas of tenure [and] duration," the Court there made clear that an individual must occupy a "continuing" position established by law to qualify as an officer. Id., at 511. Buckley v. Valeo, 424 U. S. 1 (1976)(per curiam) then set out another requirement, central to this case. It determined that members of a federal commission were officers only after finding that they "exercis[ed] significant authority pursuant to the laws of the United States." 424 U. S., at 126. The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.
Here, Mr. Mueller fails both tests.  First, his appointment is clearly not “occasional or temporary”; rather it is of indefinite duration.  Second, and of greater import, Mr. Mueller is wielding the full power of a United States Attorney: issuing subpoenas, presenting matters to the Grand Jury and offering plea deals to criminal charges.  Plainly, the “extent of power” that Mr. Mueller is exercising is the “significant authority pursuant to the laws of the United States.”  Truly, Congress has mandated by law at 28 U.S.C. Section 541(a) that same authority resides in  U.S. Attorneys who are Principal Officers requiring Senate confirmation under Article II, Section 2, clause 2.  As such, Mr. Mueller cannot be deemed a Federal Government “Employee”.

III. Mr. Mueller is Not a Principal Officer of the United States

In order for Mr. Mueller to be a “Principal Officer” of the United States, he would have had to be: (i) Appointed by the President and (ii) Approved by and with the advice and consent of the Senate.  Neither event occurred here as Mr. Mueller was appointed on May 17, 2017, solely upon the usurped authority of Deputy Attorney General Rosenstein.  See: Rosenstein’s Appointment of Mueller Letter, attached hereto.  As such, Mr. Mueller cannot claim legal authority as a “Principal Officer” of the United States.

IV. Mr. Mueller is Not an Inferior Officer of the United States

In order for Mr. Mueller to be an “Inferior Officer” of the United States, his appointment must be authorized by Congress.  As Justice Thomas noted in Lucia, “While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of "inferior Officers" by "the President alone," "the Courts of Law," or "the Heads of Departments." Art. II, §2, cl. 2.”  Here, notably, Congress has not authorized the creation of the “inferior” office of “Special Counsel”.  Congress has authorized both Assistant United States Attorneys and Special United States Attorneys, but at present there is no Congressional Authorization for a “Special Counsel”.  As such, the putative appointment of Mr. Mueller as an “Inferior Officer” designated a “Special Counsel” is a Constitutional nullity.

V. In All Events, Mr. Mueller’s Appointment Expired on December 13, 2017

Assuming for purposes of argument, that Mr. Rosenstein could appoint Mr. Mueller as a “Special Counsel”, that appointment was expressly limited by statute.  First, 5 U.S. Code §3345(a) - “Acting officer” states in pertinent part: “If an officer of an Executive agency . . . whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office - (1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.”  Here, as detailed in Deputy Attorney General Rosenstein’s letter of May 17, 2017, he had invoked  5 U.S. Code § 3345(a) when appointing Mr. Mueller as “Special Counsel”.  As such, Mr. Rosenstein was expressly limited by 5 U.S. Code § 3346, “Time Limitation” which states:
Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office- (1) for no longer than 210 days beginning on the date the vacancy occurs; 
Again, assuming Attorney General Session was “otherwise unable to perform the functions and duties of the office” due to his supposed conflict of interest, the authority of Mr. Rosenstein to act as an “Acting Attorney General” expired on December 17, 2017 – 210 days after he commenced exercising that authority.  A priori, Mr. Mueller’s authority, whatever that may be, likewise expired on December 17, 2017, with Mr. Rosenstein’s statutory sunset of his ability to act as “Acting Attorney General”.

VI. Conclusion

In sum:
  • If Mr. Rosenstein is otherwise qualified to Act as the Attorney General under 5 U.S.C. Section 3345(a)(1), his term of office would expire 210 days from when he began Acting as the Attorney General, to wit, December 17, 2017;
  • The office Mr. Mueller purports to currently hold is not established by Congress as required by the Appointments Clause; 
  • The power Mr. Mueller is exercising is equal to or greater than a United States Attorney;
  • United States Attorneys are principal officers requiring Senate confirmation under 28 U.S.C. Section 541;
  • Returning to Lucia, the Supreme Court has held that “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case” is entitled to relief. Ryder v. United States, 515 U. S. 177, 182-183 (1995). . . . This Court has also held that the "appropriate" remedy for an adjudication tainted with an appointments violation is a new "hearing before a properly appointed" official. Id., at 183, 188 as all proceedings by a Constitutionally-invalid officer are void.
Therefore,  Mr. Mueller is acting in violation of the Appointments Clause and his actions are thus void ab initio.

I am available to address any questions, comments or concerns you may have.

Yours,

/s/ Montgomery Blair Sibley

cc:

Attorney General Sessions
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Robert K. Kelner
Stephen Pierce Anthony
Counsel for Michael T. Flynn
Covington & Burling LLP
850 Tenth Street N.W.
One City Center
Washington, DC 20001
Email: rkelner@cov.com
Email: santhony@cov.com Kevin M. Downing
Counsel for Paul Manafort
Law Office of Kevin M. Downing
601 New Jersey Avenue, NW
Suite 620
Washington, DC 20001
Email: kevindowning@kdowninglaw.com

Richard William Westling
Counsel for Paul Manafort
Epstein Becker & Green, P.C.
1227 25th Street, NW
Suite 700
Washington, DC 20037
Email: rwestling@ebglaw.com

Thomas Edward Zehnle
Counsel for Paul Manafort
Law Office of Thomas E. Zehnle
601 New Jersey Avenue, NW
Suite 620
Washington, DC 20001


Email: tezehnle@gmail.com

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