Thursday, November 01, 2018

The Constitutional Challenge to Robert Mueller's Appointment

Marty Lederman

One week from today, on Thursday, November 8 at 1:00, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Henderson, Rogers and Srinivasan) will hear argument in Miller v. United States, No. 18-3052, a case challenging the constitutionality of Robert Mueller’s appointment to serve as “Special Counsel” for the Russia investigation.

The appellant is Andrew Miller, a potential grand jury witness who refused to comply with a pair of subpoenas requiring him to provide testimony and documents to the grand jury.  Miller argued, among other things, that the subpoenas should be quashed because Mueller was not lawfully appointed.  Miller continued to refuse to comply with the subpoenas even after Chief Judge Howell denied his motion to quash them, and so the Judge held him in contempt.  Miller has appealed from that contempt order.

He makes three separate arguments that Rosenstein’s appointment of Mueller purportedly violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which provides that:
[The President] 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.
First, and most fundamentally, Miller argues that Special Counsel Mueller is a “principal” officer and therefore could only be appointed by the President, by and with the advice and consent of the Senate, which was not done here.

Second, Miller argues that even if Special Counsel Mueller is an “inferior” officer, his appointment was nevertheless unconstitutional because Congress has not “by law” vested the Attorney General with the authority to appoint such a Special Counsel (in effect, a question of statutory interpretation, about whether the appointment was ultra vires).

Third, Miller argues that even if Special Counsel Mueller is an “inferior” officer, and even if Congress authorized the Attorney General to appoint him, the Deputy Attorney General, Rod Rosenstein, may not make the appointment because he is not the “Head” of the Department of Justice, even where, as here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation and is therefore unable to exercise those functions.

If the court of appeals were to hold that the Mueller appointment was unconstitutional, that would, of course, be a very big deal.  In a series of posts over at Just Security, however, I do something of a "deep dive" into Appointments Clause arcana in order to explain why that’s a very unlikely outcome.   I also identify two or three questions the court of appeals need not, and probably should not, try to answer definitively that might have greater implications for developments apart from the case on appeal—including, importantly, the nature and scope of the Acting Attorney General’s authority to remove Mueller.

The first post offers a general overview of the case, with links to the lower court opinions and the briefs on appeal.

In my second post, I explain why there’s actually a serious question, not briefed by the parties, about whether the Appointments Clause applies to Mueller at all (a question the court of appeals can likely avoid by simply assuming, without deciding, that Mueller is a constitutional “officer”).

The third post is perhaps the most important—not for purposes of resolving the Miller appeal itself, but more broadly for what it says about the officers throughout the government, including Mueller, whose independence is secured in part by tenure protections that preclude “at will” removal.  In that post, I take issue with the tentative suggestion in Chief Judge Howell’s opinion that it might be proper—or necessary to avoid a difficult constitutional question—for the court to construe expansively the Acting Attorney General’s authority to remove Mueller under the DOJ Special Counsel regulations.

My fourth post addresses a handful of issues raised by Judge Friedrich in her opinion in a related case raising similar Appointments Clause challenges to Mueller, including: whether the Supreme Court’s decision in Morrison v. Olson (1988) is still "good law"; whether a bipartisan consensus has emerged that Morrison was wrongly decided; whether the Special Counsel is an inferior officer whose appointment was constitutional even under the analysis of the Court’s later decision in Edmond v. United States (1999); and whether the prospect of a possible rescission or amendment of the Special Counsel regulations affords Rosenstein greater control over the conduct of the Mueller investigation, and whether that question has any bearing on the Appointments Clause questions in the Miller case.

In my final post, I briefly discuss what I’ve labeled above as the second and third of Miller’s three Appointments Clause arguments, both of which are predicated on the assumption that the Appointments Clause applies and that Mueller is an inferior officer.

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