The Mueller appointment, in particular, is extraordinary. His full scope and powers reside in a secret document. He operates across jurisdictions, can indict foreign officials, and was not appointed by the attorney general himself. If Howell is right, the attorney general, without Senate approval and by his own regulations, can establish independent prosecutors with vast budgets, secret powers, and no effective oversight by the president or Congress. These are powers denied even to the president in the Constitution, but they have landed in the hands of King Rosenstein.

The plain fact is that this special counsel has been given such broad authority that his appointment should absolutely require Senate confirmation. True, his term is not limited because it is unlimited. His scope is not just national but even international. Firing him cannot be accomplished without likely triggering an impeachment threat, making him the single hardest person to fire despite regulations that technically permit it. He is perhaps the only appointment with the power to upend the national election. Judges must put aside legal fictions to face the reality of this unprecedented and unconfirmed government appointment.