[Minor Update after Oral Argument below–November 8]
Two weeks from today, on Thursday, November 8, 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.
If the court were to hold that the appointment was unconstitutional, that would, of course, be a very big deal. That’s a very unlikely outcome, though. In this series of posts, I’ll try to help readers understand the various arguments at issue in the Miller case, offer some more detailed thoughts about a few discrete aspects of those arguments, and identify two or three questions the court of appeals need not, and probably should not, try to answer definitively that have greater implications for developments apart from the case on appeal—including, importantly, the nature and scope of Mueller’s job security.
This first post offers a general overview of the case.
[UPDATE, November 9: The oral argument in the D.C. Circuit yesterday was not especially eventful or surprising. None of the judges expressed any skepticism about the legality of Mueller’s appointment (although I should add that Judge Henderson did not ask any questions). If I had to predict, I’d wager that the panel will likely affirm Chief Judge Howell’s judgment, even if it might not embrace every particular aspect of the analysis in her opinion. I have added minor updates in each of the remaining posts in this series to reflect discrete things that arose at the oral argument, but it’s unlikely any of them will dramatically affect how the court resolves the case.
Before the argument began, Judge Henderson asked counsel to assume for purposes of argument that there had been no change in officers at the Department of Justice (i.e., that Jeff Sessions remained AG). She noted that the panel would soon issue an order asking the parties to address the recent developments, and the court did so today:
It is ORDERED by the Court on its own motion that each party submit a supplemental brief addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case. Each party’s brief is to be limited to ten pages and is to be filed and served simultaneously no later than the close of business on Monday, November 19, 2018.]
Acting AG Rosenstein’s Appointment of Mueller and the Application of the DOJ Special Counsel Regulations
On March 2, 2017, Attorney General Sessions recused “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Accordingly, when he took office as Deputy Attorney General on April 26, 2017, Rod Rosenstein began to exercise the functions of the Attorney General with respect to the Russia investigation pursuant to what I’ll call the “AG Succession Act,” 28 U.S.C. 508, subsection (a) of which provides that “[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”
On May 17, 2017, three weeks after he became “Acting” Attorney General for purposes of the Russia investigation, Rosenstein promulgated an Order that authorized Robert S. Mueller, III, “to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” The investigation Comey confirmed to Congress—and therefore the investigation that Rosenstein authorized Mueller to conduct—was first and foremost a counterintelligence investigation designed to thoroughly assess the Russian government’s efforts to interfere in the 2016 presidential election and any links or coordination between individuals associated with the Trump campaign and the Russian government. That FBI investigation also involved assessing whether anyone had committed crimes in connection with the Russian efforts. Consistent with the joint counterintelligence/criminal nature of the investigation, Rosenstein further authorized Mueller not only to conduct the investigation but also “to prosecute federal crimes arising from the investigation.”
Moreover, and importantly for purposes of the Miller case, the Acting Attorney General also ordered that “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” Id. ¶ (d). Attorney General Reno promulgated those regulations in 1999. They’re designed to govern cases in which “a lawyer with a reputation for integrity and impartial decisionmaking” is selected “from “outside the United States Government,” 28 C.F.R. § 600.3(a), to have “responsibility” for a criminal investigation, id. § 600.1(b), when the Attorney General, “or in cases in which the Attorney General is recused, the Acting Attorney General,” determines that investigation by a United States Attorney’s Office or litigating Division of the Department of Justice “would present a conflict of interest for the Department or other extraordinary circumstances,” id. § 600.1(a). The Special Counsel Regulations do not, by their terms, apply to counterintelligence investigations, which is likely why Rosenstein did not appoint Mueller pursuant to the Regulations themselves—he invoked instead several statutes (especially 28 U.S.C. §§ 510 and 515) that empower the Attorney General to delegate the authorities that Congress has conferred upon him. However, as noted above, Rosenstein did order that Sections 600.4 through 600.10 of the Special Counsel Regulations are to be “applicable” to Mueller.
As the government explains in its brief to the D.C. Circuit in Miller (see pp. 13-18), under these Regulations the Special Counsel is “subject to . . . ‘pervasive’ administrative supervision and oversight” by Acting Attorney General Rosenstein, including with respect to Mueller’s jurisdiction, personnel and budget. Rosenstein may also determine annually “whether the investigation should continue.” 28 C.F.R. § 600.8(a)(2). Mueller is required to comply with DOJ’s rules, regulations, procedures, practices and policies, id. § 600.7(a), and he and his staff are subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other DOJ employees, id. § 600.7(c).
Of perhaps greatest significance in terms of Rosenstein’s means of control, he “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Id. § 600.7(b). Although the Acting Attorney General must “give great weight to the views of the Special Counsel” in reviewing that explanation, he might still “conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” in which case—as the government’s brief confirms (pp. 16-17)—Rosenstein may countermand Mueller’s decision.
In all of these ways, the 1999 Regulations ensure that the Special Counsel does not deviate in any serious way from the established rules, regulations, procedures, practices and policies of the Department, and that the Attorney General (or, here, the Acting Attorney General) will have “ultimate responsibility for the matter and how it is handled.” 64 Fed. Reg. 37,038, 37,038 (July 9, 1999); see also id. at 37,040 (“notification of proposed indictments and other significant events in the course of the investigation, with the resulting opportunity for consultation, is a critical part of the mechanism through which the Attorney General can discharge his or her responsibilities with respect to the investigation”).
Even so, however, the Regulations also make clear that the Special Counsel will generally “function with substantial independence and little supervision.” Id. at 37,041. Mueller is “free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought, within the context of the established procedures of the Department.” Id. at 37,038.
Two provisions of Section 600.7 of the Regulations are the bulwarks that guarantee Mueller such independence.
First, § 600.7(b) provides that “[t]he Special Counsel shall not be subject to the day-to-day supervision of any official of the Department.” This means that neither Rosenstein nor anyone else may countermand Mueller’s decision to take a particular “investigative or prosecutorial step” other than in cases where the Acting Attorney General, after affording “substantial deference . . . to the views of the Special Counsel,” 64 Fed. Reg. at 37,040, concludes that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” § 600.7(b)—and presumably those “established” DOJ “practices” include compliance with “the rules, regulations, procedures and policies of the Department of Justice” that bind Mueller, see § 600.7(a).
Second, § 600.7(d) provides that only the Attorney General (here, Acting Attorney General Rosenstein) may discipline or remove the Special Counsel, and it further specifies the exclusive grounds for such a removal—namely, “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” (Section 600.7(d) also provides that the Attorney General “shall inform the Special Counsel in writing of the specific reason for his or her removal.”) I’ll discuss the scope of this important removal provision in a later post.
The Regulations also include transparency requirements that help to ensure the Special Counsel’s independence and that deter the Attorney General from bringing political or other inappropriate influences to bear in overseeing an investigation. If the Attorney General removes a Special Counsel, he must explain the removal to the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress, and at the conclusion of the investigation he must also explain to those congressional leaders those cases, if any, in which he concluded that a proposed action by a Special Counsel “was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” See id. § 600.9(a).
The Constitutional Challenges to Mueller’s Appointment
Two parties have recently challenged the constitutionality of the Mueller appointment in the District Court for the District of Columbia.
The first challenge—the one now on appeal to the D.C. Circuit—was brought by Andrew Miller, a potential witness in a Mueller investigation, who refused to comply with a pair of grand jury 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. In a very comprehensive opinion on July 31, Chief Judge Beryl Howell denied Miller’s motion to quash.
The other case involves a corporation that a grand jury indicted back in February: Concord Management and Consulting LLC. Concord moved to dismiss the indictment on the ground that Special Counsel Mueller was appointed unlawfully. On August 13, Judge Dabney Friedrich denied that motion. Concord cannot appeal that ruling until after trial.
Likewise, the court’s denial of Miller’s motion to quash the subpoenas in his case is not appealable. Miller, however, continued to refuse to comply with the subpoenas even after Chief Judge Howell denied his motion, and so the Judge held him in contempt. Miller has appealed from that contempt order—and that’s the case the court of appeals will consider on November 8. (Concord has filed an amicus brief in the Miller case.)
Miller’s argument, like Concord’s, is that Rosenstein’s appointment of Mueller violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which reads as follows:
[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.
For purposes of the Miller appeal, the gist of how the Appointments Clause operates is this: If someone is an “Officer of the United States”—if he holds an “office” that is “established by law”—and the Constitution itself does not specify how that Officer is to be appointed, the default rule is that he or she must be appointed by the President by and with the advice and consent of the Senate (commonly referred to as a “PAS” appointment). If, however, the person is an “inferior” Officer, then Congress “may by Law” vest the appointment authority in any one of three alternative actors: the President alone; a court of law; or the “Head” of a “Department.” This case involves arguments concerning the last of those options for appointment of an inferior officer—an appointment made by the “Head” of the Department of Justice.
Miller, the appellant, makes three distinct arguments that Rosenstein’s appointment of Mueller violated the Appointments Clause:
First, and most fundamentally, he 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.
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.
Here are the briefs on appeal:
- Miller’s opening brief
- Concord’s amicus brief in support of Miller (focusing on argument (ii), above)
- The government’s brief
- An amicus brief in support of the government on behalf of nine constitutional and administrative law scholars (Lisa Bressman, Nina Mendelson, Tom Merrill, Gillian Metzger, Anne O’Connell, Peter Shane, Kevin Stack, David Strauss and Peter Strauss)
- Miller’s reply brief
The government’s brief is exemplary—indeed, you’d be hard-pressed to find a better court of appeals brief anywhere. It’s careful, thorough, and (in my humble opinion) substantively very compelling on all three of the Appointments Clause questions listed above, as well as on several subsidiary questions (including a statutory challenge that Miller incorporates into his third constitutional challenge—namely, whether a case-specific recusal by the AG counts as a “disability” under 28 U.S.C. § 508(a) that triggers the authority of the Deputy AG to exercise the duties of the Office of the Attorney General with respect to those cases and investigations from which the AG is recused).
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There’s no need for me to repeat the government’s arguments at great length here in these posts. If you’re interested in a really fine and reliable overview of the merits of the case, I highly recommend reading the government’s brief. Suffice it to say I agree with the government that if the Appointments Clause applies to the Special Counsel at all, the court should reject each of Miller’s Article II objections, largely for the reasons the government offers in its brief.
What I plan to do instead in this series of posts is to offer some thoughts on a handful of issues or arguments the parties don’t discuss, or that the briefs don’t emphasize, as well as on a couple of questions (the scope of the Attorney General’s authority to remove Mueller and the prospect of rescinding the Attorney General regulations guaranteeing Special Counsel independence) that I think the briefs and, especially, the district court opinions, possibly over-emphasize.
In my next post, I’ll 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 whose independence is secured in part by tenure protections that preclude “at will” removal. In that post, I’ll 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 the Special Counsel under the Special Counsel regulations. As I’ll explain, it wouldn’t be reasonable to construe 28 C.F.R. § 600.7(d)’s authorization to remove the Special Counsel for “misconduct” or “good cause” to permit Rosenstein—or any other, future supervisor of the Russia investigation—to remove Mueller based simply upon the Acting Attorney General’s disagreement with the wisdom of the Special Counsel’s particular investigative and prosecutorial decisions taken within the scope of his authority, or based upon the Special Counsel’s disregard of directives that the Acting Attorney General doesn’t have the authority to issue. On this question, too, however, the court of appeals can and should remain agnostic: It’s unnecessary for the court to ascertain the precise contours of the “good cause” removal provision—and therefore the Court should avoid such a holding—because the Special Counsel is (at most) an “inferior” officer regardless of how the removal grounds in § 600.7(d) are best construed.
My fourth post will address a handful of issues raised by Judge Friedrich’s decision in the related Concord Management case, including whether the Supreme Court’s decision in Morrison v. Olson (1988) is still good law and whether a consensus has emerged that was wrongly decided, and 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). Most importantly, I’ll discuss another issue that’s received inordinate attention in the briefs and, especially, the lower court decisions—namely, 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’ll briefly discuss what I’ve labeled above as the second and third of Miller’s three Appointments Clause arguments.
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Posts in this series:
 As Sessions himself later explained to the Senate Intelligence Committee, this recusal was legally required under 28 C.F.R. § 45.2(a)(2), which bars participation in the Russia investigation, or a related prosecution, of any DOJ employee who had a personal or political relationship with an organization (in Sessions’s case, the Trump Campaign) that has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution; see also 28 U.S.C. § 528 (requiring the AG to promulgate rules “which require the disqualification of any officer or employee of the Department of Justice” when participation in a prosecution or investigation “may result in a personal, financial, or political conflict of interest, or the appearance thereof”). For the same reason, presumably Sessions can’t supervise or direct other campaign-related investigations, too, such as some that might be undertaken by the U.S. Attorney’s Office for the Southern District of New York.
 When Sessions originally recused back on March 2, 2017, there was no confirmed Deputy AG—nor any of the other DOJ officers listed in the AG Order that prescribes the line of “succession” in such a case. Therefore it was then necessary to resort to a presidential Executive Order, which continues the line of succession in such cases, and which President Trump had recently amended to designate the U.S. Attorney for the Eastern District of Virginia–then Dana Boente–to be next in line. Boente thus supervised the Russia investigation for six weeks, until the Senate confirmed Rosenstein as DAG.
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
 The idea that Miller can file an interlocutory appeal of the contempt order when he’s not permitted to appeal from the denial of the motion to quash itself might seem counterintuitive, especially because the Supreme Court has “limited rather sharply the issues that may be raised by an individual who has been subpoenaed as a grand jury witness and has been held in contempt for failure to comply with the subpoena.” Morrison v. Olson, 487 U.S. 654, 669 (1988) (citing Blair v. United States, 250 U.S. 273 (1919)). Cf. also Walker v. City of Birmingham, 388 U.S. 307 (1967) (holding that the invalidity of an injunction is generally not a defense to contempt, and therefore a party faced with an invalid injunction must have the injunction modified or vacated, and can’t simply ignore it). Indeed, the independent counsel in Morrison argued that such an appeal from an order of contempt for refusing to comply with a grand jury subpoena is nonjusticiable. The Supreme Court did not resolve that question in Morrison, however (except to hold that there was no Article III barrier to such an appeal), because the prosecutor had waived any objection by not raising it in the district court. 487 U.S. at 669-70. In the Miller case, the Special Counsel likewise has chosen not to challenge the propriety of adjudicating the substantive issue as a defense to the contempt holding. In any event, it’s not an open issue in the court of appeals because there’s binding, pre-Morrison precedent in the D.C. Circuit that there’s no bar to raising the substantive objection to a subpoena in an appeal from a contempt order. See In re Sealed Case, 827 F.2d 776 (D.C. Cir. 1987). It may also seem strange to challenge the legality of a subpoena on grounds that the prosecutor was unlawfully appointed, given that it is the grand jury itself that issues the subpoenas. In that same 1987 case, however, the D.C. Circuit explained, without elaboration, that “it seems to us that the claim that a subpoena was applied for and issued under the signature of unauthorized persons would constitute a cognizable claim of . . . unlawfulness” that can be challenged in the context of a contempt holding. Id. at 778. Whether or not that holding was correct, presumably it won’t be revisited in Miller.