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?

[UPDATED to reflect November 8 oral argument]

In the case that’ll be argued November 8 before a panel of the U.S. Court of Appeals for the D.C. Circuit, appellant Andrew Miller’s central argument is that Special Counsel Robert Mueller is a “principal” officer who must be appointed by the President by and with the advice and consent of the Senate, and that therefore Mueller’s appointment by Acting Attorney General Rosenstein was unconstitutional, even if Rosenstein was the Head of the Department of Justice for purposes of that appointment.  (See my introductory post for further details.)

At the end of this post and in the next, I’ll briefly address why I think Miller’s argument is wrong—why Mueller is, at most, an “inferior” officer whose appointment was constitutional.  Readers seeking more granular detail of the argument should read Part I of the government’s superlative brief on appeal, which will give you virtually everything you need to know.

My principal focus in this post is on one discrete aspect of Miller’s “principal” officer argument, not because it’s likely to determine the outcome of the current constitutional challenge—it shouldn’t—but instead because it could bear heavily on the future fate of the Mueller investigation, especially if President Trump selects someone new to superintend the Special Counsel by removing either Rosenstein or Attorney General Sessions.  In other words, this post is predominantly about the nature of Mueller’s job security—in particular, about the significant, continuing confusion about who can remove Mueller from his position, and on what grounds.  And my principal goal in this post is merely to urge the court of appeals to be careful not to contribute to the confusion and misunderstandings on that question.

As part of his argument that Mueller is not an inferior officer for Appointments Clause purposes, Miller emphasizes the protection against “at will” removal that Mueller enjoys pursuant to a Department of Justice regulation, 28 C.F.R. § 600.7(d), that Acting Attorney General Rosenstein has ordered to be “applicable to the Special Counsel.”  Subsection 600.7(d) provides that only the Attorney General (here, the Acting Attorney General) may discipline or remove a Special Counsel, and it further specifies the limited grounds for such removal—namely, only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

In her opinion rejecting Miller’s Appointments Clause challenges, Chief Judge Howell appeared to agree with Miller (see pp. 39-45) that if the regulation affords Mueller at least some form of robust removal protection, that might affect whether he’s a principal officer.  For that reason, she suggested it might be appropriate to construe § 600.7(d) to give the Attorney General a “permissive” removal authority, including the power to discharge a Special Counsel “for defying the Attorney General’s conclusion that an action should not be pursued.”

In what follows, I’ll try to explain why that’s mistaken—why it wouldn’t be reasonable to construe § 600.7(d), or similar “good cause” removal protections found in many statutes and regulations, to authorize such a robust removal authority.  More importantly, however, and as I’ll explain at the end of this post and in the next one, the court of appeals need not—and shouldn’t—opine on the precise parameters of the § 600.7(d) removal authority.  Mueller is (at most) an inferior officer, even assuming that authority is limited in the ways I’ll suggest.

Situating the removal question

In order to better understand this issue, a reminder about some brief background is in order concerning the relationship between the Acting Attorney General and the Special Counsel.  (Much of this was in my initial post last week and therefore might sound familiar.)

In his May 17, 2017, Order appointing Mueller as a Special Counsel for the joint criminal/counterintelligence Russia/election investigation, Acting Attorney General Rosenstein provided (see ¶ (d)) that “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.”  As the government explains in its brief at pages 13-18, under these regulations the Special Counsel is “subject to . . . ‘pervasive’ administrative supervision and oversight” by the Acting Attorney General, including with respect to the Counsel’s jurisdiction, personnel and budget.  The Acting Attorney General may also determine annually “whether the investigation should continue.”  28 C.F.R. § 600.8(a)(2).  Special Counsel Mueller is required to comply with the rules, regulations, procedures, practices and policies of the Department of Justice, 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 employees of the Department of Justice, id. § 600.7(c).

Of perhaps greatest significance in terms of the Acting Attorney General’s means of control, he “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.”  Id. § 600.7(b).  (In the oral argument for the government before the district court in the Concord Management case, Michael Dreeben explained that the Special Counsel regularly consults with Rosenstein about investigative steps, and provides him with “Urgent Reports” of “major developments in significant investigations and litigation,” Justice Manual § 1-13.100, in advance of taking any such actions.)  Although Rosenstein must “give great weight to the views of the Special Counsel” in reviewing explanations for investigative or prosecutorial steps, 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)—the Acting Attorney General may countermand Mueller’s proposed course of action.

In all of these ways, the DOJ regulations ensure that the Special Counsel doesn’t deviate 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 guarantee that the Special Counsel will generally “function[] with substantial independence and little supervision.”  Id. at 37,041.  He’s “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 the regulations form the basis for such Special Counsel 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 Rosenstein may not 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 DOJ “practices” include compliance with “the rules, regulations, procedures and policies of the Department of Justice” that bind Mueller, see § 600.7(a).[1]

Second—and of greatest significance for present purposes—§ 600.7(d) provides that only the Attorney General (here, the Acting Attorney General) may discipline or remove the Special Counsel, and it further specifies the grounds on which the Attorney General may remove a Special Counsel—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.”)  And if the Attorney General removes a Special Counsel, he must explain that removal to the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress.  Id. § 600.9(a)(2).

In her discussion of whether Special Counsel Mueller is a principal or an inferior officer for purposes of the Appointments Clause, Chief Judge Howell implied that the breadth of the Attorney General’s removal authority under § 600.7(d) could materially affect the Appointments Clause analysis.  Immediately after stating that § 600.7(d) “allows the Attorney General to remove a Special Counsel for defying the Attorney General’s conclusion that an action should not be pursued,” she wrote that “Section 600.7(d)’s removal provision thus does not make the Special Counsel a principal officer” (p.45)—thereby hinting that perhaps the Attorney General must have a general power to remove the Special Counsel for insubordination lest the Counsel be deemed a principal officer.[2]  Chief Judge Howell also indicated that § 600.7(d) should be construed to be “permissive,” id. at 44; and in an accompanying footnote she suggested that “good cause” for removal of a Special Counsel might include a determination by the removing authority that the Counsel had made “‘policy decisions that amounted to inefficiency,’” which in her view would render the “good cause” provision “‘only a minimal barrier to removal.’”  Id. at 44 n.19 (quoting PHH Corp. v. CFPB, 881 F.3d 75, 135, 137 (D.C. Cir. 2018) (en banc) (Griffith, J., concurring in the judgment)).

The United States, at page 20 of its brief, similarly (but without elaboration) suggests a possible reading of the removal regulation that would impose “‘only minimal restrictions’” on the authority of the Attorney General to discharge a Special Counsel (quoting Judge Friedrich’s opinion in the related Concord Management case, 317 F. Supp. 3d at 613).  A “broad reading” of the removal authority, writes the government, would be entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997), “and, accordingly, the removal power in the Special Counsel regulation provides a significant mechanism for control.”

As I’ll explain, however, there are limits to how broadly § 600.7(d)’s removal authority can fairly be interpreted:  In particular, it shouldn’t be construed to authorize the Acting Attorney General to remove a Special Counsel based simply upon disagreements about the wisdom of the Counsel’s specific investigative and prosecutorial decisions undertaken within the scope of his authority, nor for the Special Counsel’s refusal to comply with directives that the Acting Attorney General lacks the authority to issue.

There’s no need, however, for the court of appeals to resolve whether and to what extent I’m right about the scope of “good cause” for removal, because even on my reading of § 600.7(d), the mechanisms of control in the regulations are more than sufficient to ensure that Mueller is (at most) an inferior officer for purposes of the Appointments Clause.  (In my most recent post before this one, I explain why the Appointments Clause might not apply to Mueller at all.  For the remainder of these posts, however, I’ll assume–as the court of appeals surely will, too–that the Clause applies, and thus that it matters whether Mueller is a principal or an “inferior” officer.)

The Authority to Remove Mueller is Significantly Constrained.

There is (almost) universal consensus that application of § 600.7(d), which the Rosenstein Order guarantees, eliminates the statutory authority the Attorney General or Acting AG would otherwise have to remove Mueller “at will.”[3]  Even so, there are many legitimate grounds that could justify removal consistent with that regulation.  By its terms, for example, § 600.7(d) authorizes dismissal based upon a “dereliction of duty, incapacity, [or] conflict of interest.”  In addition, if the Special Counsel engages in unethical behavior, an abuse of authority, or self-dealing, those would surely be forms of “misconduct,” or other “good cause,” that would justify removal.[4]  So, too, if the Special Counsel willfully violated the law, or demonstrated gross incompetence, removal by the Attorney General (who is himself removable by the President) could be a necessary tool to ensure that the President is able to fulfill “his constitutional obligation to ensure the faithful execution of the laws.”  Morrison v. Olson, 487 U.S. 654, 693 (1988); see also id. at 692 (“because the independent counsel may be terminated for ‘good cause,’ the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act”); PHH Corp. v. CFPB, 881 F.3d 75, 90 (D.C. Cir. 2018) (en banc).  Likewise, egregious violations of DOJ rules, regulations, procedures [or] policies that bind Mueller, see § 600.7(a), could be grounds for removal.

It might even be the case, as the government argues in its brief (see p.19), that a Special Counsel’s “failure to follow an order from the Attorney General that is lawful under the regulation” (emphasis added)—for example, in an unlikely scenario where Rosenstein forbids Mueller from taking a step that is, in Rosenstein’s view, “so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” even after affording “substantial deference . . . to the views of the Special Counsel,” and Mueller then disregards Rosenstein’s order—could rise to the level of “misconduct” that would justify removal, depending upon the importance of the order and the nature of the failure to comply with it.[5]

[UPDATE:  At the oral argument on November 8, Judge Srinivasan and Michael Dreeben engaged in a very helpful colloquy that confirmed the limited scope of the Acting Attorney General’s authority to micromanage Special Counsel Mueller under the applicable Regulations, and the limits on his authority to remove Mueller.  [Check out 56:15–1:00:30.]

Judge Srinivasan asked about the sentence in the government’s brief (see p.19) stating that a Special Counsel’s “failure to follow an order from the Attorney General that is lawful under the regulation” (emphasis added, and stressed by Srinivasan, too) could be grounds for removal.  What does that cover?, he wanted to know.  Or, more importantly, what sorts of orders would not be lawful (and thus could be disregarded without grounds for removal), apart from the obvious, e.g., an order that’s given for an improper purpose or that directs Mueller to violate the law?

Dreeben confirmed the government’s view that, pursuant to subsection 600.7(d), if the Acting AG concludes (after affording “substantial deference” to Mueller’s views) that a Mueller-proposed course of action would be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” the Acting AG could forbid Mueller from taking that action–and if Mueller disregarded such an order, that in turn could be grounds for a lawful removal.

Importantly, however, and consistent with what I explain in this post, Dreeben confirmed that it would not be lawful for the Acting AG to direct Mueller to forego a proposed course of action based upon a mere disagreement about the wisdom of the action or whether the Acting AG would exercise the prosecutor’s discretion in the same way.  The key passage from Dreeben’s argument:

If the Acting Attorney General said [to the Special Counsel]:

“Look, this [proposed action] is well within Department of Justice established practice; prosecutors do this all the time:  They seek immunity.  They make plea agreements.  They bring indictments.  But in my personal view I’d just exercise the discretion differently.  You’re well within the bounds of what a prosecutor could do, but I would do it differently.”–

that is not what’s envisioned by this regulation [as grounds for a “lawful” AG order].  [The regulatory standard for countermanding the Special Counsel is] viewed as something that reflects an effort to provide some independence.]

Likewise, a willful “violation of Departmental policies” by Mueller would be “misconduct” that might warrant removal—again, depending upon the circumstances of the particular violation.  As Attorney General Reno wrote when she promulgated the regulations:

Violation of Departmental policies is specifically identified as a ground that may warrant removal.  The willful violation of some policies might warrant removal or other disciplinary action, and a series of negligent or careless overlooking of important policies might similarly warrant removal or other disciplinary action.  Such conduct also would be encompassed within the articulated standard of misconduct or dereliction of duty.

64 Fed. Reg. at 37,040.  (She added that “[t]here are, of course, other violations of Departmental policies and guidelines that would not ordinarily be grounds for removal or other disciplinary action.”  Id.)

All of which is to say that the Attorney General (or Acting AG) has far greater authority to remove a Special Counsel than he did under the Watergate investigation regulations, which permitted removal of a Special Prosecutor only for “extraordinary improprieties.”  See 38 Fed. Reg. 14,688, 14,688 (May 31, 1973) (regulation in effect while Archibald Cox was Special Prosecutor); id. at 30,738, 30,739 (Nov. 2, 1973); id. at 32805, 32,805 (Nov. 19, 1973) (regulations in effect when Leon Jaworski was Special Prosecutor).[6]

There are important limits on the removal authority, however—limits designed to ensure that the Special Counsel is “free to structure [an] 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.”  64 Fed. Reg. at 37,038 (emphasis added).  Two such limits on the AG’s removal authority are especially significant.

First, the term “good cause” can’t fairly be read to allow the Acting Attorney General to remove a Special Counsel based simply upon his disagreement about the wisdom of the Counsel’s specific investigative and prosecutorial decisions, assuming those decisions were within the scope of Mueller’s delegated authority.  If Rosenstein had such a vast removal power, the Special Counsel would constantly be looking over his shoulder, reluctant to take any steps that might find disfavor with his principal—thereby effectively undermining the “independence” from political influence that the Attorney General’s regulation was designed to protect.  (Just imagine the Attorney General saying to the Special Counsel:  “I can’t direct you not to issue that subpoena, or not to bring those lawful charges—but take heed:  if you do so, you won’t be in this job much longer.”)

Second, the authority to remove the Counsel for “good cause” does not afford the Acting Attorney General an unfettered authority to remove the Special Counsel for any and every case of “insubordination,” i.e., for any and all refusals to comply with the Acting AG’s instructions or directives.  To be sure, if the Acting Attorney General issues a lawful instruction, a Special Counsel’s willful disregard of that instruction might be “good cause” for discipline, including perhaps removal in serious cases.  But if the Special Counsel reasonably concludes that the Acting Attorney General’s order is ultra vires—for instance, if the directive is inconsistent with the guarantee in § 600.7(b) that “[t]he Special Counsel shall not be subject to the day-to-day supervision of any official of the Department”—then his or her failure to follow such an order presumably would not be a “good cause” for removal.[7]  As Judge Friedrich explained in her Concord Management decision with respect to the particular relationship between the Acting Attorney General and the Special Counsel (pp. 20-21):

[T]he regulations—at most—only require the Special Counsel to follow the Acting Attorney General’s countermand orders for actions deemed “so inappropriate or unwarranted under established Departmental practices.”  28 C.F.R. § 600.7(b). . . .  With regard to actions that do not rise to that level, the regulations do not clearly require the Special Counsel to follow orders, so it is difficult to see how “good cause” would arise from the Special Counsel’s refusal to follow orders.  Under such circumstances, the Special Counsel could rightly resist removal on the ground that he was proceeding in full compliance with the regulations, while the Acting Attorney General would not have a similarly steady leg to stand.  After all, the Acting Attorney General would be seeking to remove the Special Counsel for not following orders that the Special Counsel was under no duty to follow.

Judge Friedrich’s reading is consistent with the central, express purpose of the regulations–to secure the Special Counsel’s independent prosecutorial discretion.

Two other important considerations strongly confirm this reading of § 600.7(d) to contain such limits on the Attorney General’s authority to remove a Special Counsel.

The first is the language of the regulation itself.  The inclusion of the word “other” to modify “good cause” (“for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies”) indicates that the specific grounds listed in the regulation—misconduct, dereliction of duty, incapacity, conflict of interest, and violation of Departmental policies—are examples of what Attorney General Reno meant to include under the aegis of “good cause.”  See, e.g., Yates v. United States, 135 S. Ct. 1074, 1086 (the ejusdem generis canon counsels that “‘[w]here general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words’”) (internal citation omitted).  The Federal Register notice confirms this.  See 64 Fed. Reg. at 37,040 (“Paragraphs (c) and (d) provide protection for a Special Counsel by providing that the Attorney General may remove the Special Counsel only for good cause, several examples of which are provided in the regulation.”) (emphasis added).  Those enumerated examples—of wrongdoing, incapacity and conflicts—do not naturally encompass, and are not analogous to, cases in which the Special Counsel exercises discretion in a manner that the Attorney General does not favor or in which the Counsel refuses to obey a directive that is inconsistent with the independence the regulations were designed to secure.

The origin of the regulation—the body of law it was designed to incorporate by reference—further supports this circumscribed reading.  Attorney General Reno promulgated the Special Counsel regulations in 1999 in order to replace the “Independent Counsel” regime formerly established by Title IV of the Ethics in Government Act, discussed in Morrison v. Olson, which Congress chose not to renew upon its “sunset” date in 1999.  The “good cause” reference in § 600.7(d) evidently derives from the similar tenure protection provision in the later versions of the Act, see 28 U.S.C. § 596(a)(1) (expired) (“An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical or mental disability . . ., or any other condition that substantially impairs the performance of such independent counsel’s duties.”).  There’s every reason to believe that AG Reno intended “good cause” in § 600.7(d) to have the same meaning as the term “good cause” in the former independent counsel statute.

So what did “good cause” in the pre-1999 Act mean?

The Ethics in Government Act originally included an even more stringent standard, allowing removal only for “extraordinary impropriety,” that was derived from the regulatory independence protections that applied to Archibald Cox and Leon Jaworski.  In 1982, Congress amended the provision to permit the Attorney General to remove independent counsel “for good cause.”  Pub. L. 97-409, § 6(d), 96 Stat. 2039, 2042.  Testifying on behalf of the Justice Department, Associate Attorney General Rudolph Giuliani approved of that “welcome amendment,” because it’s “the standard used for the so-called independence agencies, and there is a whole body of law that would define what that means.”  Ethics in Government Act Amendments of 1982: Hearing Before the Subcomm. on Oversight of Government Management of the Senate Comm. on Governmental Affairs, 97th Cong., 2d Sess. 17, 20 (1982).  The “good cause” amendment, Giuliani explained, “would bring it within a whole body of case law” governing removals of officials heading independent agencies, id. at 20, and therefore “would, in all likelihood, insulate the legislation from constitutional attack in this respect,” id. at 17.  The Senate’s summary of the bill (and the Senate Report) adopted this understanding:  Whereas there was “no standard defining what constitutes ‘extraordinary impropriety,’” the summary explained, the bill would provide for “good cause” removal, “a standard which is used for the removal of some independent agency officials,” thereby incorporating “a developed body of law on which to base removal.”  Id. at 47; accord S. Rep. 97-496, at 17 (1982), 1982 U.S.C.C.A.N. 3537, 3553.

In 1987, however, Congress heard quite different, and more troubling, testimony from DOJ.  By this time, the Reagan Administration was fully committed to the very robust theory of the “unitary executive” that it presented to the Supreme Court in Morrison the following year.  The Assistant Attorney General for Legislative Affairs, John Bolton (yup, that John Bolton), testified that “[a]ny statutory restriction on presidential removal of a federal prosecutor like the independent counsel must yield to the explicit constitutional responsibility of the President to direct the prosecutor’s execution of the laws” (although in fact the Constitution includes no such “explicit” responsibility of the President to “direct” a prosecutor’s law execution).  Oversight of the Independent Counsel Statute: Hearings Before the Subcomm. on Oversight of Government Management of the Senate Comm. on Governmental Affairs, 100th Cong., 1st Sess. 123 (1987).  So, for example, Bolton testified that “if the President gave a direct, lawful order to the independent counsel and the independent counsel refused to abide by that order, that refusal would constitute good cause” to remove the counsel.  “If the statute were interpreted that way, then it could be saved from constitutional infirmity,” he argued, but “[i]f it were not interpreted that way by a court, then you would have limited the President’s removal power in a way that we think would be unconstitutional.”  Id. at 35-36.  That testimony was met by incredulity from at least one Senator (id. at 36):

Senator COHEN. Let me just clarify that. If the President were to give an order, a direct order to the independent counsel and the independent counsel were to disobey, refuse to obey that particular order, that in your judgment would be reasonable grounds for removal?

Mr. BOLTON. Yes.

Senator COHEN. But that, in effect, nullifies the whole purpose of having an independent counsel, doesn’t it?

In response to the Bolton testimony, the Senate voted to add a clarifying amendment stating that a “refusal of an independent counsel to obey an order of the President is not good cause for removal if that order would compromise the independence of proceedings under this chapter of otherwise violate the purposes of this chapter.”  The conferees who worked out the final version of the 1987 amendments did not include that proposed Senate addition, but only “because they agree[d] that this statement is clearly included in the standard itself, and therefore need not be expressly stated in the text of the statute.”  H.R. Conf. Rep. 100-452, at 37 (1987), 1987 U.S.C.C.A.N. 2185, 2203.  The conferees’ fuller explanation was unequivocal about the nature of the “good cause” removal standard:

While the conferees remain extremely concerned about recent erroneous statements by the Department of Justice that an independent counsel may be fired for failing to obey any Presidential order—even an order which would compromise the very integrity of an independent counsel’s proceedings—the conferees are confident that any court reviewing the removal of such an independent counsel would reject the Department’s reasoning.

The “good cause” removal standard is at the heart of the statutory mechanisms protecting the independent counsel’s ability to act independently of the President’s direct control.  This standard prohibits removals at the will of the President or the Attorney General; it permits removals only where an independent counsel has engaged in misconduct. Independent counsels who resist Presidential orders that would violate the integrity of their proceedings—such as orders to grant unwarranted prosecutorial immunity to the targets of the independent counsel’s criminal investigation—are acting, not improperly, but in accordance with the statute’s purposes. The conferees are confident that the courts will ensure this interpretation of the “good cause” standard.

Id. (emphasis added); see also id. at 34, 1987 U.S.C.C.A.N. at 2200 (“the conferees recognize that the ‘good cause’ standard for removal itself makes it clear that the decisionmaking of independent counsels is independent from the Department of Justice”).

In light of this congressional development, there was no dispute among the parties about the limited nature of the “good cause” provision when Morrison v. Olson was argued several months later.  Ted Olson’s lawyer conceded, at oral argument, that “the conference report in the Congress is very clear that the good cause removal standard is at the heart of the mechanism protecting the independent counsel’s ability to act independently of the President’s direct control,” such that “even if the independent counsel fails to abide by Presidential order, she cannot be removed.”  And Solicitor General Fried, on behalf of the United States, likewise conceded in his brief that “Congress intended to permit removal only for ‘misconduct’” and that “[a]ll parties agree that those provisions were designed to ensure independence from the entire Executive Branch, including the President” (citing the passage from the Conference Report that “[t]he ‘good cause’ removal standard is at the heart of the statutory mechanisms protecting the independent counsel’s ability to act independently of the President’s direct control”).

Although the Court in Morrison did “not decide . . . exactly what [was] encompassed within the term ‘good cause’ under the Act,” 487 U.S. at 692, it did note that the legislature’s “determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office,” id. at 693.  And less than seven months later the Supreme Court opined that yet another “good cause” removal restriction (applicable to the Sentencing Commission), “like the removal provisions upheld in Morrison v. Olson . . . and Humphrey’s Executor v. United States, 295 U.S. 602 (1935), is specifically crafted to prevent the [removing authority] from exercising ‘coercive influence’ over independent agencies.”  Mistretta v. United States, 488 U.S. 361, 410-11 (1989).

The Court’s understanding of a sharply circumscribed meaning of “good cause”—one that preserves independence and deters the exercise of “coercive influence” by the removal authority—is consistent with Congress’s express intent that the “good cause’ formulation should ensure the same type and degree of tenure protection enjoyed by officers in “independent” agencies.  See Free Enterprise Fund, 561 U.S. at 549-56 (Breyer, J., dissenting) (appendix listing numerous agency removal protections, some of which refer to “good cause” or “cause”).  As the Supreme Court noted in Free Enterprise Fund, its precedents regarding such removal protections for “independent” agencies don’t support the view that “simple disagreement with the [actor’s] policies or priorities could constitute ‘good cause’ for . . . removal.”  561 U.S. at 502 (citing Morrison, Humphrey’s Executor, and Wiener v. United States, 357 U.S. 349 (1958)).

Indeed, the fact that “good cause” in the pre-1999 Act, and thus in the 1999 DOJ regulations, is designed to reflect the same sort of tenure protection enjoyed by officers heading “independent” agencies provides perhaps the most compelling reason that the court of appeals in Miller should not embrace a more robust reading of “good cause” in the Special Counsel removal regulation—namely, that such a holding could call into question well-established understandings concerning the independence of many federal agencies whose officers are protected by similar removal provisions, including, most significantly, the Federal Reserve Board, whose members are entitled to hold office for fourteen years “unless sooner removed for cause by the President,” 12 U.S.C. § 242.  As it happens, in recent months President Trump has regularly engaged in caustic attacks on members of the Fed who have supported interest-rate hikes.  Imagine if such rate hikes were understood as “cause” sufficient to justify Trump’s removal of members of the Fed—an interpretation of “cause” that would surely upset ancient, widespread understandings in the political branches.  (Robert Bremner reports, for example, that in 1965, Attorney General advised President Johnson that termination of a Board member “for cause” does not include disagreement with the President’s preferred monetary policy.  Bremner, Chairman of the Fed: William McChesney Martin Jr., and the Creation of the Modern American Financial System 203 (2004).  I have not tracked down the July 8, 1965 memo from Katzenbach to Johnson to see what more he wrote about the question.)

The court of appeals in Miller ought to be wary of announcing any interpretation of “good cause” that might have such dramatic and potentially convulsive implications for “independence” throughout the Executive branch.

In its brief, the government suggests (p.20) that perhaps a more permissive DOJ reading of § 600.7(d) would be entitled to deference under Auer v. Robbins, 519 U.S. 452 (1997).  For the reasons I’ve discussed here, I have serious doubts whether such an interpretation could be justified, even under Auer, as consistent with the Reno regulation.  In any event, the Attorney General hasn’t promulgated such a new regulatory interpretation, and is unlikely to do so any time soon.  (Indeed, an Attorney General wishing to have more control over the granular decision-making of Special Counsels is more likely simply to repeal or amend § 600.7(d), rather than to give it an untenable new reading.)  Any question of Auer deference, therefore, is premature and purely hypothetical.

The Court of Appeals shouldn’t opine on the scope of § 600.7(d) because even a narrow reading of the removal authority doesn’t raise a serious Appointments Clause question.

As I’ve recounted above, there are many different grounds that would be valid bases for the Acting Attorney General to remove Special Counsel Mueller—i.e., to make certain he is complying with the law and faithfully fulfilling his duties—but such grounds do not include a mere disagreement about the wisdom of Mueller’s specific investigative and prosecutorial decisions undertaken within the scope of his authority, nor a hypothetical refusal by Mueller to comply with a directive that the Acting Attorney General lacks the authority to issue.  Reading the standard for removal in § 600.7(d) broadly, to cover such hypothetical cases, would be inconsistent with the language of the regulation, the Attorney General’s specific explanation that the regulations are designed to preserve the Counsel’s independence, and the fact that § 600.7(d) is designed to be coterminous with the similar standard previously included in the final version of the “independent counsel” law that was before the Supreme Court in Morrison, which in turn Congress intended to be construed as consistent with the sorts of “tenure protection” provisions governing independent agencies such as the Federal Reserve.

As I noted at the top of this post, Chief Judge Howell suggested in her opinion that perhaps a broader reading of “good cause” for removal would be appropriate in order to ensure that Mueller’s appointment was constitutional under the Appointments Clause—in effect, an application of the “constitutional avoidance” canon.  Similarly, in the Concord Management case, Judge Friedrich wrote (p.20) that if the Special Counsel regulations afford Mueller “substantial protection against removal,” as she (rightly) concluded that they do, that would “risk rendering him a principal officer” for purposes of the Appointments Clause, thereby requiring presidential appointment by and with the advice and consent of the Senate.

The avoidance canon has no place here, however.  The Supreme Court has explained that statutes should be interpreted to avoid only serious constitutional doubts, “not to eliminate all possible contentions that the statute might be unconstitutional.”  Reno v. Flores, 507 U.S. at 314; see also Almendarez–Torres v. United States, 523 U.S. at 239 (“the Court need not apply … the [avoidance] doctrine … where a constitutional question, while lacking an obvious answer, does not lead a majority gravely to doubt that the statute is constitutional”).  Here, the scope of the removal provision in§ 600.7(d) does not raise any doubts at all, let alone serious doubts, about the Appointments Clause questions on appeal.

Indeed, as the government explains in its brief (at pp. 26-30), binding Supreme Court precedent mandates the result that Mueller is (at best) an inferior officer, regardless of the scope of the removal authority.  The Watergate “Special Prosecutors,” for instance, had far greater independence and protection from removal than does the current Special Counsel, see supra, and yet no one imagined they might have been appointed in violation of the Appointments Clause.  See Nixon, 418 U.S. at 694 (characterizing Leon Jaworksi as a “subordinate officer[],” appointed “to assist [the Attorney General] in the discharge of his duties”); Morrison, 487 U.S. at 673 (equating the “subordinate officer” in Nixon with an “inferior Officer” for Appointments Clause purposes).

The Court’s recent decision in Lucia further confirms the absence of any serious argument that Mueller is a “superior” officer by virtue of his tenure protection.  In that case, the Court ultimately concluded that the ALJs in question there were “inferior” officers, even though they could only be removed for “good cause,” and then not even by virtue of the agency head’s own assessment, but only if such “good cause” was “established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.”

To be sure, in the latter section of his brief in Lucia, Solicitor General Francisco asked the Court to construe that “good cause” provision very broadly—to include an ALJ’s “failure to follow lawful directives or to perform adequately—in order to avoid a supposed difficult question concerning whether Congress had unconstitutionally constrained the President’s duty (under the “Take Care” Clause of Article II) to ensure that ALJs are faithfully executing the law.  As I’ve discussed elsewhere, I think that argument by the SG was misplaced and would require overruling Morrison’s holding on the President’s power of removal and his duty to take care that the laws are faithfully executed, among other precedents.  (The Court declined to reach the question—see p.4 n.1.)  But whatever the merits of that argument might be, that question is not raised in the Miller case, where Congress hasn’t imposed any limits at all on the Attorney General’s authority to remove Special Counsels.  (The limits are the handiwork of the Attorney General, an officer who the President can remove at will.  See also PHH Corp. v. CFPB, 881 F.3d 75, 96 n.2 (D.C. Cir. 2018) (en banc) (“The question whether a removal restriction unconstitutionally constrains presidential power … does not track whether the shielded official is a principal or inferior officer.”)  And, in any event, the regulation itself does afford the Attorney General the power to ensure that Mueller faithfully executes the law.

The only constitutional issue in Miller is not related to the President’s “Take Care” duty, but instead whether Rosenstein’s appoint of Mueller violated the Appointments Clause.  And on that question, the SG in Lucia repeatedly represented (see pp. 11, 12, 14, 38, 42)—including in his argument about “good cause” removal—that the ALJs are “inferior” officers who can lawfully be appointed by the Securities and Exchange Commission, the head of the department.  Indeed, with respect to that point, there was no dispute among the parties, and the Court, in its opinion (see p.5 n.3), cited that consensus with apparent approval (“Both the Government and Lucia view the SEC’s ALJs as inferior officers and acknowledge that the Commission, as a head of department, can constitutionally appoint them.”).  The upshot of Lucia, everyone agrees, is that the SEC itself may appoint its ALJs, notwithstanding their “good cause” removal protection.

Of greatest significance are Morrison itself, 487 U.S. at 670-73, and In re Sealed Case, 829 F.2d 50, 56-57 (D.C. Cir. 1987), in which the Supreme Court and the D.C. Circuit, respectively, held that the independent counsels in question there were inferior officers, based upon reasoning that equally applies here, notwithstanding that they were protected by “good cause” removal provisions akin to those at issue here.  Indeed, as the government points out in its Miller appeal brief (p.27), the Appointments Clause result in Miller follows a fortiori from Morrison, because the independent counsel statute at issue in that 1988 case provided for less oversight and supervision over the independent counsel than the regulations here prescribe for Special Counsel Mueller: Alexa Morrison, unlike Mueller, was not required to explain her investigative or prosecutorial steps to the Attorney General, nor did the Attorney General have any authority to countermand her actions, even upon a determination that they were “so inappropriate or unwarranted under established Departmental practices that [they] should not be pursued,” 28 C.F.R. § 600.7(b).  Even so, the Court found that Morrison “clearly falls on the ‘inferior officer’ side of th[e] line.”  Although she was not “subordinate” to the Attorney General (and the President) “insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act,” Chief Justice Rehnquist explained, the mere “fact that she can be removed by the Attorney General indicates that she is, to some degree, ‘inferior’ in rank and authority.”  487 U.S. at 671.

Fortunately, then, there’s no need, nor any reason, for the court of appeals in Miller to say whether I’m right about the scope of “good cause,” or otherwise to ascertain the detailed metes and bounds of § 600.7(d)’s removal criteria.  For as Morrison and other binding precedents hold, even if the permissible grounds for removal are limited in the ways I’ve suggested, that wouldn’t raise any serious doubts about the conclusion that Special Counsel Mueller isn’t a principal officer who must be appointed by the President by and with the advice and consent of the Senate.

In my next post, I’ll address Judge Friedrich’s suggestion that perhaps Morrison’s analysis is obsolete, or has been superseded by the Court’s 1997 decision in Edmond v. United States, and her further conclusion that the Appointments Clause analysis in Miller depends upon whether Acting Attorney General Rosenstein has the power to rescind or amend the independence provisions found in § 600.7 of the DOJ regulations.

* * * *

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

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[1] During oral argument in the Concord Management case, Judge Friedrich asked Michael Dreeben, representing the government, what could happen if one of Mueller’s decisions raised a major foreign policy concern or resulted in a serious misallocation of resources.  Dreeben responded that that might be a case in which the Acting Attorney General could forbid the action under § 600.7(b), presumably on the ground that it would be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”  Whether that would be true in any particular case would, of course, depend upon the particular established DOJ practices in question, which undoubtedly include foregoing or tempering prosecutorial actions where relevant officials inform DOJ that such steps would significantly harm U.S. foreign policy objectives.

[2] That’s not the only way to understand that passage in Judge Howell’s opinion, however.  In stating that the Special Counsel could be removed “for defying the Attorney General’s conclusion that an action should not be pursued,” it’s possible she meant to refer only to instances in which the Acting Attorney General concludes, even after deferring to the Special Counsel’s views, that a proposed action “is so inappropriate or unwarranted under established Departmental practices that it should not be pursued”—a much narrower and more defensible construction of the regulation.

[3] I included the qualifier “(almost)” only because, in recent congressional testimony, Professor Akhil Amar stated that “[a]t present, a special counsel such as Robert Mueller is inferior (and thus constitutionally kosher) precisely because he can be fired at will—surely by the AG, and probably also by the President.”  This is mistaken in three respects:

(i) As I’ve written previously, the President can’t fire Mueller at all—the regulations themselves, as well as longstanding background norms, give the power of removal exclusively to the officer with the power of appointment, here, the Attorney General (or Acting AG).  This means, in particular, that “[t]he President has certainly no power to remove [an inferior officer appointed by a Department Head].”  In re Hennen, 38 U.S. 230, 260 (1839); see also PCAOB v. FEF, 561 U.S. 477, 493 (2010), and other authorities cited in my earlier posts.  That’s why Nixon himself did not fire Archibald Cox—he and his Attorney General recognized that he lacked the power to do so.

(ii) The applicable regulation unambiguously precludes “at will” removal.

(iii) And, as I explain at the end of this post and in my next post, the possibility of “at will” removal is not a necessary characteristic of an “inferior” officer.

[4] See, e.g., Aditya Bamzai, Taft, Frankfurter, and the First Presidential for-Cause Removal, 52 U. Rich. L. Rev. 691, 747 (2018) (recounting that President Taft removed a member of the Board of General Appraisers, protected by a provision permitting removal only for “inefficiency, neglect of duty, and malfeasance in office,” based upon a committee’s finding that the officer probably used his official power to compel personal favors and to set precedents for favorable decisions in cases involving his son).

[5] In her opinion in Concord Management, Judge Friedrich wrote (p.19) that “[a]t the motion hearing, the Special Counsel represented, without limitation, that ‘good cause’ would exist if the Special Counsel did not follow any order from the Acting Attorney General” (emphasis added).  I’m not sure that’s right.  As I read the transcript, Michael Dreeben appeared to be assuming that the hypothetical Acting AG order in question would be one that Rosenstein is authorized to issue—which is a far cry from “any” order.  In any event, the government’s brief on appeal confirms its view that disregard of a lawful Rosenstein order—as limited by § 600.7(b)—could be grounds for removal.

[6] After Cox was removed as part of the “Saturday Night Massacre,” the Acting Attorney General was compelled under political pressure to amend the regulations to add that removal also could not occur—even on the basis of “extraordinary improprieties”—unless and until the President obtained the approval of a “consensus” of the majority and minority leaders of the Senate and House and the chairmen and ranking members of both chambers’ Judiciary Committees.  See id. at 30,739, id. at 32,805.  Of course the current Special Counsel regulations contain no such precondition.

[7] In his recent brief in the Supreme Court Lucia case, involving a similar statutory removal provision, the SG argued (see p.50) that the term “good cause” in a statute designed to protect the independence of Administrative Law Judges is “best read to include an ALJ’s failure to perform adequately or to follow agency policies, procedures, or instructions.”  In support of this assertion, the SG cited Justice Scalia’s remark in his dissenting opinion in Morrison that the authority to remove an inferior officer “for cause . . . would include, of course, the failure to accept supervision.” 487 U.S. at 724 n.4.  An outright refusal to accept the lawful “supervision” of a superior might, indeed, be “good cause” for removal.  That doesn’t mean, however, and Justice Scalia didn’t say, that any and all failures to follow a principal’s “instructions” constitute “good cause” for removal—particularly where such instructions themselves are outside the principal’s authority and where the “good cause” tenure protection was expressly designed to secured the officer’s independence from everyday supervision and direction.  (The Court in Lucia declined to reach the question of how to construe “good cause” in the ALJ removal statute.)

Indeed, even in the very different context of the civil service, where “for cause” removal standards are not designed to secure employee independence and where “insubordination” is generally a sufficient cause for discipline, insubordination is defined as “a willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.”  Phillips v. General Services Admin., 878 F.2d 370, 373 (Fed. Cir. 1989) (emphasis added).

  

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).