If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.
"No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel's appointment before proceeding," Clarence Thomas wrote.
"The Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides:" 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 Department.
The constitutional process for filling an office is plain from this text.
The default manner for appointing "Officers of the United States" is nomination by the President and confirmation by the Senate.
"Before the President or a Department Head can appoint any officer the Constitution requires that the underlying office be "Established by Law."1 The Constitution itself creates some offices, most obviously that of the President and Vice President.
Although the Constitution contemplates that there will be "Other Officers of the United States, whose Appointments are not herein otherwise provided for," it clearly requires that those offices "Shall be established by Law."
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