The Constitutional Challenge to Robert Mueller’s Appointment (Part II): Is Mueller Even an Officer Subject to the Appointments Clause?

[With minor oral argument update; Nov. 8]

As I explained in my introductory post, in the case challenging the legality of Robert Mueller’s appointment, Miller v. United States, which will be argued before a panel of the U.S. Court of Appeals for the D.C. Circuit on November 8, appellant Andrew Miller makes three distinct arguments that Acting Attorney General Rod Rosenstein’s appointment of Mueller to be Special Counsel for the Russia investigation violated the Appointments Clause of Article II of the Constitution.

The case has been briefed on the assumption by both parties, and their amici, that the Appointments Clause applies to Mueller.  Chief Judge Howell assumed the same in her decision below: “[L]ittle doubt exists,” she wrote (p.26 n.10), that the Special Counsel is an “officer” to whom the Appointments Clause applies.  And in the district court, Mueller’s own attorneys wrote in their brief that “[i]t is undisputed that the Special Counsel is an officer and the Appointments Clause applies,” citing Lucia v. SEC for the proposition that “those who ‘exercise[] significant authority pursuant to the laws of the United States’” are officers.

The Appointments Clause does not necessary apply, however, simply because an individual exercises significant authority pursuant to federal law.  That’s a necessary precondition, but it’s not sufficient.  As the Court reiterated in Lucia, “an individual [also] must occupy a ‘continuing’ position established by law to qualify as an officer.”  Slip op. at 6 (quoting United States v. Germaine, 99 U. S. 508, 511 (1879)); accord id. at 8 (concluding that the SEC’s ALJs “hold a continuing office established by law”); id. at 1 (Sotomayor, J., dissenting) (“As the majority notes, this Court’s decisions currently set forth at least two prerequisites to officer status: (1) an individual must hold a ‘continuing’ office established by law, and (2) an individual must wield ‘significant authority’”) (citations to Germaine and Buckley v. Valeo omitted); Freytag v. Commissioner, 501 U. S. 868, 881 (1991).  This point is also stressed, and elaborated upon, in two important OLC opinions of recent decades:  The Constitutional Separation of Powers Between the President and Congress (1996) (see Part II-B-1), and Officers of the United States Within the Meaning of the Appointments Clause (2007) (see Part II-B).

For reasons I’ll set forth presently, I think it’s questionable whether Mueller occupies an Appointments Clause “office”—“a continuing position established by law”—in light of three distinct, related characteristics of his employment.  Because Mueller hasn’t contested whether the Appointments Clause applies to him, however, the court of appeals almost certainly will assume for purposes of the appeal that it does apply.  And that assumption almost certainly won’t make any difference to the outcome of the Miller case—not, anyway, if the court holds, as I think it should, that Rosenstein’s appointment satisfied the Appointments Clause.

The court of appeals should, however, take care not to issue any holding that the Clause applies, in light of the serious reasons to question whether Mueller holds an “office.”  Such a holding might have unintended and uncertain ramifications for other contexts in which Congress or an agency chooses to use a means of appointment (e.g., by a lower-level officer, or by the head of an agency that is a component of a Department) that doesn’t conform to the Appointments Clause.  Accordingly, because the Acting Attorney General’s appointment of Mueller would be constitutional even if the Special Counsel is a constitutional “officer,” the Court can and should resolve the appeal without adopting a view on the complicated question of whether he is such an officer.  However, in the unlikely event the panel holds that Rosenstein’s appointment would not satisfy the Appointments Clause, the court of appeals should remand the case to the district court to determine whether the Clause applies, so that it can be addressed with the benefit of full briefing from the parties on that distinct question.

[UPDATE:  This issue–about whether Mueller is an officer at all–did not arise during the oral argument on November 8.]

OK, now on to the merits.  Please be advised:  This is going to get a bit deep in the Appointments Clause weeds and, as I mentioned above, it’s unlikely to determine the outcome of the constitutional challenge to Mueller’s appointment.  Some readers might therefore wish to simply skip to my remaining three posts next week, in which I’ll discuss whether Miller’s appointment satisfied the Appointments Clause, assuming arguendo that he holds an “office” to which the Clause applies.

If the Special Counsel himself believes he’s an Appointments Clause “officer,” as his brief indicated in the district court, then why am I skeptical?  Three particular characteristics of this particular Special Counsel position give me pause about whether the Appointments Clause applies to Mueller.  I’m concededly uncertain whether any one of them, standing alone, would be enough to foreclose application of the Clause.  But taking the three considerations together—and they are related to one another in important ways—there’s certainly room for serious doubt about whether Mueller holds an Article II “office.”

  1. Mueller was Hired Only to Perform a Discrete, “Special” Task, not to a “Continuing” Position within DOJ

Acting AG Rosenstein hired Mueller only to perform a discrete and limited task—he was “selected for the special case,” as an “expert assistant” to the (Acting) Attorney General to help that officer perform the Attorney General’s own statutory functions.  Auffmordt v. Hedden, 137 U.S. 310, 326-27 (1890) (emphasis added).  Mueller himself has “no general functions, nor any employment which has any duration as to time, or which extends over any case further than as he is selected to act in that particular case.”  Id. at 327.  Therefore his position may not be sufficiently “continuing,” its functions not sufficiently “general,” to constitute an “office” for Appointments Clause purposes.  See also United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (Marshall, C.J., sitting as Circuit Justice) (“Although an office is ‘an employment,’ it does not follow that every employment is an office.  A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer.”).

As the 2007 OLC opinion on officers elaborates at length (see Part II-B-1), this general understanding that persons selected to perform certain discrete functions for a “special” or “particular” case are not “officers,” even where they might exercise significant government authority—what might be called the “Auffmordt distinction”—was very well-established, and rarely if ever questioned, for almost 200 years.

That understanding helps to explain, for example, the longstanding practice, beginning with President Washington, of dispatching agents on specific diplomatic missions overseas without complying with the Appointments Clause.  It’s also reflected in Hamilton’s explanation of the selection of Commissioners under the Jay Treaty with Great Britain:  “[T]hey are not in a strict sense OFFICERS.  They are arbitrators between the two Countries. Though in the Constitutions, both of the U[nited] States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed a violation of the provision to appoint Commissioners or special Agents for special purposes in a different mode.”  It explains in part why qui tam relators—whom Congress authorizes to represent the United States as civil prosecutors in specific cases—are not “officers” governed by the Appointments Clause; why ordinary government contractors are also not covered (see also 1996 OLC opinion Part II-B-1-a); and why, as OLC explained in a 1995 opinion, the Appointments Clause does not prohibit the federal government from submitting to binding arbitration before an arbitrator chosen to resolve a particular case, even though “[i]t seems beyond dispute that arbitrators exercise significant authority, at least in the context of binding arbitration involving the federal government.”

The Auffmordt distinction is also reflected in the leading treatise on offices and officers, published contemporaneously with the decision in Auffmordt itself, in which Floyd Mechem explained that where the powers and duties of a position are not fixed by statute, but instead the person filling that position is appointed “merely at the will and pleasure of his principal to serve some purpose of the latter, he is not a public officer but a mere servant or agent.  So a special deputy employed only in a particular case is not a public officer.”  Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 38, at 16-17 (1890); see also The Reconstruction Acts, 12 Op. Att’y Gen. 141, 155–56 (1867) (invoking the “well established” rule that “persons who exercise special public duties rather in the nature of occasional employments than general and continuing official duty” are not typically considered executive or judicial officers of a state).

If the Auffmordt distinction were determinative—i.e., that individuals chosen to perform the delegating official’s functions “for the special case” invariably fall on the nonofficer side of the line—then it’d be clear that the Appointments Clause does not apply to Special Counsel Robert Mueller, which would be reason enough, in and of itself, to reject Miller’s constitutional objections.

There’s an important catch, however—namely, the Supreme Court’s 1988 decision in Morrison v. Olson, in which the Court wrote in a footnote that it was “clear” that Independent Counsel Alexia Morrison was “an ‘officer’ of the United States” bound by the Appointments Clause, 487 U.S. at 671 n.12, even though she, like Mueller, was chosen to perform a special, case-specific function, one that expired when she accomplished the discrete task she was assigned to perform.  Notably, the parties in Morrison did not contest whether the Appointments Clause applied, and the Court itself did not explain why it was “clear” that it did:  the footnote in Morrison merely cited footnote 162 of Buckley v. Valeo (1976), in which the Court actually cited Auffmordt to explain the distinction between officers and mere employees:  “‘Officers of the United States,’” wrote the Buckley Court,

does not include all employees of the United States, but there is no claim made that the [Federal Election Commission] Commissioners are employees of the United States, rather than officers.  Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. HeddenUnited States v. Germaine (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.

Needless to say, those two sentences in Buckley do not begin to explain why Independent Counsel Morrison was an officer, let alone “clear[ly]” so.  Unlike the FEC Commissioners in Buckley, she was not appointed to a statutory “term,” and she was “subject to the control” of another executive authority—the Attorney General.  (Indeed, that was the linchpin of the Court’s principal holdings in Morrison itself.)

It’s therefore something of a mystery how Morrison’s brief, one-sentence “holding” that the Independent Counsel was an “officer”–a non sequitur, really–might be reconciled with the longstanding distinction reflected in Auffmordt (a case cited with approval, with respect to this very distinction, in the Buckley footnote that’s the basis for the Morrison holding).  Be that as it may, however, after Morrison it’d be irresponsible to insist that Mueller is not an “officer” merely because he was “selected for the special case,” as an “expert assistant” to the (Acting) Attorney General to help that officer perform the principal officer’s own statutory functions (quotations from Auffmordt).  That fact unquestionably remains an important consideration in determining whether the Appointments Clause applies, but it is not conclusive on the question of whether the position is an “office.”  It remains necessary to explain why Mueller is differently situated from Alexia Morrison.  And that’s why the second and third characteristics of Mueller’s employment are especially significant.

  1. There is no “Office” independent of Mueller—his employment is “personal” to him

In many well-known past instances where the Attorney General has appointed “special” or “independent” counsels, that appointment followed (or was coterminous with) the creation of an office itself.  On June 4, 1973, for example, Attorney General Richardson formally established within the Department of Justice “the Office of Watergate Special Prosecution Force, to be headed by a Director.”  38 Fed. Reg. 14,688 (1973).  He then appointed Archibald Cox to be the Director of that Office.  After Cox was removed, the Office remained, and the Acting Attorney General appointed a new Director, Leon Jaworksi, to run it.  Similarly, on March 10, 1987, Attorney General Meese established an “Office of Independent Counsel: Iran/Contra, to be headed by an Independent Counsel.”  52 Fed. Reg. 7270 (1987).  He then appointed Lawrence Walsh to be that Independent Counsel.  If Walsh had resigned or died, the Office would have survived him and would have required appointment of a new Independent Counsel.

The Ethics in Government Act, which authorized the “Independent Counsel” considered in Morrison v. Olson, did not in so many words establish “an office” to be filled by appointees—instead, it required a “Special Division” of judges to appoint an “independent counsel” under certain circumstances.  See 28 U.S.C. § 593(a) (since expired).  Even so, that statute elsewhere distinguished between the office and a particular appointee, making clear that the continuance of the former was not dependent upon the continued service of the latter.  Subsection 593(e) provided that “[i]f a vacancy in office arises by reason of the resignation, death, or removal of an independent counsel, the division of the court shall appoint an independent counsel to complete the work of the independent counsel whose resignation, death, or removal caused the vacancy.”  And subsection 596(b) prescribed that “[a]n office of independent counsel shall terminate when,” inter alia, “the independent counsel notifies the Attorney General that the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . . . have been completed.”

In the present case, by contrast, Acting Attorney General did not establish an office of “Special Counsel for the Russia Investigation,” separate and apart from his selection of Robert Mueller as Special Counsel.  The latter is all there is:  Rosenstein’s May 2017 Appointment Order is simply an order appointing a particular individual, Robert Mueller, III, to perform certain functions, namely, “to serve as Special Counsel for the United States Department of Justice[,] . . . authorized to conduct the investigation confirmed by then-FBI Director James S. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.”[1]  If Mueller were to resign or die, there would be no “office” to be filled by another appointee—in that case, the criminal/counterintelligence Russia investigation would simply revert back to the control of the FBI and attorneys within the Department of Justice, as it had been before Mueller’s assignment.  To be sure, the Acting Attorney General could of course choose to appoint a new “Special Counsel” from outside the Department or from within to direct that investigation.  But he might also choose not to do so, because, unlike in the Watergate, Iran-Contra and Morrison cases, there would be no vacant office that would require filling.

Because there is no “office” of Russia Special Counsel distinct from the selection of Robert Mueller to run an investigation—no office or position, that is, that would persist beyond his service—the Appointments Clause should not apply to Mueller’s appointment.  As OLC explained in 2007, the existence of a constitutional “office” is “not contingent on a particular person’s holding it” (p. 101); see also id. at 102 (“By the time of the Founding, an ‘office’ was understood in the common law ‘as an institution distinct from the person holding it and capable of persisting beyond his incumbency’” (quoting Edward S. Corwin, The President: Office and Powers 1789–1948, at 85 (5th ed. 1984)); id. at 101 (quoting Letter for Lamar Alexander, Staff Assistant to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel at 3 (Dec. 9, 1969), to the effect that a Staff Assistant to the President did not hold an “office” within the meaning of the Congressional Ineligibility Clause because, inter alia, “the position itself, as a position and apart from the particular incumbent, has no fixed duration”).

In short, in order to constitute an “office” for Appointments Clause purposes, “[t]he position’s existence should not be personal:  The duties should ‘continue, though the person be changed.’”  Id. at 112 (quoting Maurice, 26 F. Cas. at 1214).  That is not the case with respect to Rosenstein’s selection of Robert Mueller as “Special Counsel.”  If and when Mueller ceases to perform the assigned functions, there won’t be a position of “Special Counsel” to be filled absent a further discretionary selection of another individual by the Acting Attorney General.[2]

  1. Mueller’s position and its duties are not “established by law” in the sense of being specified by or delineated in a statute.

The other major way in which Mueller’s position as “Special Counsel” is distinguishable from Alexia Morrison’s position as “Independent Prosecutor” is that Mueller’s position—including its duties—is not specifically “created by statute.” Lucia v. Securities and Exchange Comm’n, 138 S. Ct. 2044, 2053 (2018).

To be sure, Congress has authorized the Attorney General, pursuant to ordinary, general delegation statutes, to delegate his prosecutorial and investigative functions to such a counsel from outside the Executive branch.  (I’ll discuss this congressional authorization in my final post.)  But the absence of any specific statutory establishment of an “office” of Special Counsel might preclude application of the Appointments Clause (especially in combination with the first two characteristics discussed above).

This argument is predicated upon the phrase “and which shall be established by law” in the Appointments Clause.  Recall the Clause’s general specification—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.”

The final, boldfaced phrase has long been something of a puzzle.  As Chief Justice Marshall, sitting as Circuit Justice, wrote in 1823:  “I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause.”  Maurice, 26 F. Cas. at 1213.  For one thing, the Framers apparently neglected to include the object of the clause in the text—although the word “office” doesn’t appear, it’s long been understood that the word “which” must refer to offices, not to “Appointments” or to “Officers of the United States,” in order for the clause to make any sense at all.  See id. (“the relative ‘which,’ . . . [is] referred to as signifying the office itself”; “this relative [refers] to the word ‘offices,’ which word, if not expressed, must be understood”).

Even then, there are at least two possible functions of the final “and which shall be established by Law” phrase:  (i) it might refer to a precondition that must be satisfied—an attribute of a covered “office”—before the Appointments Clause’s requirements are even triggered in the first instance; or (ii) it might be understood as an additional constitutional requirement, apart from the prescribed manner of appointment—an insistence that, regardless of manner of appointments of individuals to offices, all offices themselves that are not created by the Constitution must be “established” by statute, rather than created by, e.g., the President himself.  See id. (Marshall lamenting that “it is not perfectly clear whether the words ‘which’ offices ‘shall be established by law,’ are to be construed as ordaining, that all offices of the United States shall be established by law, or merely as limiting the previous general words [those providing for presidential appointment by and with the advice and consent of the Senate] to such offices as shall be established by law”).

Marshall himself thought that the phrase had the latter effect—that it was a means of precluding the Executive from itself creating offices “as might be deemed necessary for [the laws’] execution, and afterwards to fill those offices.”  Id.; see also id. (adopting this interpretation “because I think it accords best with the general spirit of the constitution”).[3]

The modern Supreme Court, however, appears to have treated “which shall be established by Law” as a condition that describes the “offices” to which the Appointments Clause applies in the first instance.  Most significantly, in Freytag v. Commissioner (1991), the Court distinguished the office of trial judge, which was “established by Law” with its “duties, salary, and means of appointment … specified by statute,” from “special masters,” who the courts hire “on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute,” and who are therefore mere employees who need not be appointed in conformity with the Appointments Clause.  501 U.S. at 881.  Likewise in its recent Lucia decision, the Court explained that the SEC’s Administrative Law Judges “hold a continuing office established by law” at least in part because they’re appointed “to a position created by statute, down to its ‘duties, salary, and means of appointment’” (slip. op. at 8 (quoting Freytag)).  Accord 1996 OLC Separation of Powers opinion at 144 n.56 (“The text of the Appointments Clause implies that offices in the sense of the Clause must be established in the Constitution or by statute.”); 1995 OLC Arbitration opinion at 215 & n.19 (“The Freytag Court put some weight on the fact that the position of special trial judge, as well as its duties, salary, and mode of appointment, are specifically established by statute. . . .  The text of the Appointments Clause implies that offices in the sense of the Clause must be established in the Constitution or by statute.”); id. at 218 (“Arbitrators share none of these material qualities [of the Independent Prosecutor].  The position of arbitrator is not created by a congressional enactment.”).[4]

The Court of Appeals for the D.C. Circuit itself has likewise at least twice characterized “established by law”—and the fact of statutory specification of the position’s duties, salary, and means of appointment—as a “threshold trigger for the Appointments Clause.”  Landry v. FDIC, 204 F.3d at 1133; see also Lucia v. SEC, 832 F.3d at 284 (noting “the threshold requirement that the relevant position was ‘established by Law’ and the position’s ‘duties, salary, and means of appointment’ are specified by statute”) (later vacated on other grounds).

If this is correct—a question that hasn’t been conclusively settled—it would mean that if an officer such as the Attorney General (not a statute) creates the position in question, pursuant to a general statutory authority that affords such officer the power and discretion to hire others, and to delegate authority to them to assist the officer in the performance of his own statutory functions—which is effectively what’s happened here, as in virtually every other case where the AG establishes positions within DOJ that Congress has not specified, e.g., Deputy Assistant Attorneys General)—then the position is not an “office” subject to the requirements of the Appointments Clause, and it’s constitutionally sufficient that the officer doing the delegating (here, Rod Rosenstein) was himself appointed to his office in conformity with the Clause.  Accord Mecham, supra, § 38, at 16-17 (“Where [a deputy’s] appointment is provided for by law, and a fortiori where it is required by law, which fixes the powers and duties of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of their duties, the deputies are usually regarded as public officers. . . .  But where the deputy is appointed merely at the will and pleasure of his principal to serve some purpose of the latter, he is not a public officer but a mere servant or agent.”).

* * * *

I don’t mean to suggest that the answer to the question of whether Mueller holds an Appointments Clause “office” is an easy one.  To the contrary, as OLC wrote in 2007, “[n]o definition of ‘office’ can be expected to harmonize all of the precedent or answer all cases that may arise.”  Even so, I think it’s fair, at a minimum, to say that at least where all three of the characteristics I’ve described are present—where (i) the appointee is hired for a specific, “special” project and his functions are discrete and limited, rather than “continuing”; (ii) the position does not exist independent of the person assigned to perform those functions and would not automatically persist beyond his tenure; and (iii) the position, and its duties and functions, are not “specified by” or “delineated in” a statute—then there’s a very serious question whether the position is an “office” subject to the Appointments Clause at all.

And because the answer to that question is not nearly as obvious as the district court and the parties have assumed it to be, the court of appeals should not decide whether Mueller holds an office—a holding that might have unintended and uncertain ramifications for other contexts in which Congress or an agency chooses to use a means of appointment (e.g., by a lower-level officer or the head of an agency “embedded” in a larger Department) not prescribed by the Appointments Clause.

If the court holds, as I think it should, that Rosenstein’s appointment of Mueller conformed to the requirements of the Appointments Clause, then the court can simply assume arguendo that the Clause applies, without opining on whether it does so.  See, e.g., Tucker v. CIR, 676 F.3d 1129, 1132-33 (D.C. Cir. 2012) (“bypass[ing]” resolution of whether a position was “established by law” where such a decision wasn’t necessary in order for the court to reject the Appointments Clause challenge).  In the unlikely event, however, that the court agrees with Miller that Mueller’s appointment did not comply with the Clause’s requirements, then the court should remand to the district court the question whether Mueller holds an “office” in the first instance, so that the judiciary can consider that question with the benefit of full briefing from the parties on that discrete question.

* * * *

In the three remaining posts in this series, beginning on Monday, I’ll offer some thoughts about the merits of the Appointments Clause arguments in Miller, beginning with a post that focuses on the scope of Mueller’s protection from removal and the question of whether and to what extent his tenure protection bears on the Appointments Clause challenge.

* * * *

Posts in this series:

The Constitutional Challenge to Robert Mueller’s Appointment (Part I): Introduction

The Constitutional Challenge to Robert Mueller’s Appointment (Part II): Is Mueller Even an Officer Subject to the Appointments Clause?

The Constitutional Challenge to Robert Mueller’s Appointment (Part III):  What Would be “Good Cause” to Remove Mueller?  And Does it Matter for Appointments Clause Purposes?

The Constitutional Challenge to Robert Mueller’s Appointment (Part IV):  Morrison, Edmond, and the DOJ Special Counsel Regulations

The Constitutional Challenge to Robert Mueller’s Appointment (Part V):  If Mueller is an Inferior Officer, Did Rosenstein Constitutionally Appoint Him?

The Constitutional Challenge to Robert Mueller’s Appointment (Part VI): The Oral Argument and Supplemental Briefing Order

____________________________________

[1] Nor do the 1999 DOJ Special Counsel Regulations create an “office” of Special Counsel, let alone an office of Special Counsel for the Russia Investigation.  They merely prescribe how and why such counsel are to be appointed for certain criminal investigations, how the Special Counsel must act, and the nature of the Counsel’s relationship with the Attorney General.  Subsection 600.7(d) does state that “[t]he Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General” (emphasis added), but that’s the only reference to the Counsel’s “office” in the Regulations, and it doesn’t appear to be a reference to a distinct or formal “Office of Special Counsel,” akin to “the Office of Watergate Special Prosecution Force” that the Attorney General formally established in the 1973 regulations.  In any event, for the reasons I explained in my introductory post—primarily, that the Regulations do not apply to counterintelligence investigations such as the one Mueller is conducting—Rosenstein did not appoint Mueller pursuant to those Regulations.

[2] As far as I know, Mueller’s administrative appointment papers within DOJ are not part of the record in the Miller case or otherwise publicly available, so I have no way of knowing whether they might confirm or contradict the account I’ve offered in the text above.  In particular, we don’t know whether President Trump has “commissioned” Mueller to a purported office, something that Article II, § 3 of the Constitution requires the President to do if Mueller is, in fact, an “Officer of the United States.”

[3] There is a bit of ambiguous support for this view—at least in terms of what the drafters intended—in the debates of the 1787 Philadelphia Convention.  The concluding phrase in question was added via a last-minute amendment on September 15.  2 Farrand’s Records 628.  It appears to have been based upon an earlier amendment offered by John Dickinson and barely approved on August 24—an amendment that was later omitted by the Committee of Eleven and the Committee on Style—that read:  “[The President] shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law.”  Dickinson reportedly made this amendment immediately after Madison had moved to add the words “to offices” (in lieu of “officers”) “in order to obviate doubts that [the President] might appoint officers without a previous creation of the offices by the Legislature.”  Id. at 405.  Neither Madison’s “to offices” nor Dickinson’s “to all offices,” however, survived the latter amendments, for reasons that aren’t reflected in Madison’s notes of the Convention.

[4] In 2007, OLC opined (pp. 117-18) that “the rule for which sorts of positions have been ‘established by Law’ such that they amount to offices subject to the Appointments Clause cannot be whether a position was formally and directly created as an ‘office’ by law,” because that would allow Congress to “evade the Appointments Clause by, for example, the artifice of authorizing a contract for the supervision of the Justice Department, on the ground that no ‘office’ of Attorney General would be created by law—even where the statutory authorization for the contract were to delegate sovereign authority and establish the continuance of the contractual position.”  The argument underlying Freytag, Lucia, and the earlier OLC opinions, however, is not that the statute in question must expressly or “formally” refer to an “office,” as such, but simply that the position in question—its duties and functions—must be “specified by” or “delineated in a statute” (Freytag) in order the Appointments Clause to apply, a precondition that would cover the 2007 OLC “evasion” hypothetical, as well as, e.g., the statute at issue in Lucia, which provided simply that “[e]ach agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with [the APA].”  There is no such statute in the case of the Special Counsel for the Russia investigation.

Image: Special counsel Robert Mueller arrives at the U.S. Capitol on June 21, 2017. Photo by Alex Wong/Getty Images

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).