THREAD: First important point to recognize is the question posed here--it is NOT whether a Special Counsel can be constitutionally appointed, but rather whether Mueller has in practice been given such unfettered authority that he is acting as "principal officer," which under 1/
2/ constitution requires Senate confirmation. Initially, then, the panel will need to set some standard to judge how much authority is too much. I'd guess judges would establish a test that focuses on authority US attorneys have, and supervision by DOJ they are subject to and
3/ ask if theoretically and in practice, Mueller has the same/similar authority and has been subjected to same/more/less supervision. BUT after establishing the test, I highly doubt the panel can apply it: The court will need to remand to the lower court for record to be
4/ developed. The power and supervision of Mueller would be fascinating to learn, but likely kept largely under wraps. Then the twist of Whitaker's new role comes in. I'm not sure exactly how the judges see that as an issue, but reference to supplemental briefing means they
5/5 do. My gut there is that if Whitaker is more involved in supervision or impacted Mueller's authority, court wants to know that. Not sure if briefing & oral argument are sealed, if not, I'll try to dig into more. For now, key-take away: Nothing is happening any time soon. END
Posttwit: The constitutionality of Mueller's appointment presents a different question than of Whitaker because Whitaker is "acting" and assuming powers b/c of vacancy. Still an "issue" but a very different issue.
