[With minor oral argument update; Nov. 8] 

In this final post, I’ll briefly describe the other two Appointments Clause arguments that appellant Andrew Miller makes in his challenge to the Mueller appointment, mostly so that interested readers can understand exactly what the court of appeals will be considering.  I’ll also flag an additional consideration or two that help to show why those arguments are unlikely to carry the day.

These two arguments both depend upon the assumption that Special Counsel Mueller is an “inferior” Officer for purposes of the Appointments Clause, i.e., that the Appointments Clause applies to him in the first instance (but see my second post) and that Miller is not a “principal” Officer who must be appointed by the President by and with the Senate’s advice and consent (something that Miller separately contests—the subject of my third and fourth posts).

The Appointments Clause provides that “Congress may by Law” vest the appointment of an inferior Officer in, inter alia, the “Head[]” of a Department.  What I’m calling Miller’s “second” argument is that Congress has not authorized the Attorney General—the “Head” of the Department of Justice—to appoint a Special Counsel such as Mueller.  His “third” constitutional argument is that even if Congress has authorized the Attorney General to appoint Mueller, and even if Congress has authorized the Deputy Attorney General to perform the AG’s functions where, as here, the AG is legally recused, the Deputy AG is not the “Head” of DOJ in this case, either because Sessions’s recusal did not create a “disability” that authorized Rod Rosenstein to exercise the functions of the AG in the Russia investigation, or because Sessions was not legally required to recuse from the decision whether to appoint a Special Counsel.

  1. Has Congress Authorized the Attorney General to Appoint a Special Counsel?

Miller argues that Congress has not “by Law” vested the Attorney General with the authority to appoint a Special Counsel.  The way in which an Appointments Clause question of this type typically arises is that Congress creates an office but (arguably) fails to prescribe who will appoint the officer—in which case the Article II default rule kicks in: the President must make the appointment, by and with the Senate’s advice and consent (PAS).  In the case of the Special Counsel for the Russia investigation, however, Congress itself did not create the position in question—the (Acting) Attorney General did.  (As I explained in an earlier post, that’s a reason to doubt that it’s a constitutional “office” at all for purposes of the Appointments Clause.)  Even so, by the plain terms of the Appointments Clause, if it is an office, and Congress has not “vested” the Attorney General with the authority to appoint someone to hold that office, the PAS default rule would apply—in which case Mueller was not properly appointed.

Therefore this particular Appointments Clause argument of Miller’s reduces to a simple question of statutory interpretation:  Has Congress conferred upon the Attorney General the authority to hire someone from outside DOJ to perform the investigatory and prosecutorial functions that Rosenstein hired Mueller to perform?

Miller has opted to make this his lead argument, and Concord Management devotes its entire amicus brief to it.  This is, to put it mildly, a surprising and very dubious litigation strategy.  Attorneys General have been hiring “special” counsels to handle particular matters going back to President Garfield’s day,[1] and no one in any of the three branches has ever seriously questioned the AG’s statutory authority to do so.  To the contrary, both the Supreme Court and the U.S. Court of Appeals for the D.C. Circuit have held (or, at a minimum, noted without expressing any doubts) that the Attorney General had such power, in well-known cases involving the appointment of Leon Jaworski as Special Prosecutor in the Watergate investigation and Lawrence Walsh in the Iran-Contra affair.  See U.S. v. Nixon, 418 U.S. at 694 (Congress “has . . . vested in [the AG] the power to appoint subordinate officers to assist him in the discharge of his duties.  Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.”); In re Sealed Case, 829 F.2d at 55 (“We have no difficulty concluding that the Attorney General possessed the statutory authority to create the Office of Independent Counsel: Iran/Contra and to convey to it the ‘investigative and prosecutorial functions and powers’ described in [AG regulations]”).

Miller’s and Concord’s argument is, in effect, that all of these historical appointments were unauthorized, or ultra vires.  In support of this deeply counterintuitive argument, they rely almost exclusively on the fact that the particular statute most often invoked by Attorneys General to make such appointments—a law first enacted in 1870 and presently codified as 28 U.S.C. § 515(b)—does not say, in so many terms, that the AG has the authority to hire, retain or appoint special counsels.  That statute does say, however, that “[e]ach attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law,” and the adjoining subsection of the current law provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct,” id. § 515(a).  In other words, section 515 expressly contemplates that the AG has the authority to appoint special counsels such as Mueller.  Moreover, Congress has appropriated funds over the years to pay the salaries of such attorneys.  And in 1966, Congress passed another statute, 28 U.S.C. § 533, which expressly provides, and thus confirms, that the Attorney General “may appoint officials—(1) to detect and prosecute crimes against the United States; . . . [and] (4) to conduct such other investigations regarding official matters under the control of the Department of Justice,” which includes the sort of counterintelligence investigation that Mueller is undertaking.[2]

The government’s brief (see pp. 30-45), and Chief Judge Howell’s opinion (pp. 4-13, 67-83), do a very thorough job explaining why statutory text and history, the decisions in Nixon and Sealed Case, and the long history of AG appointments of special counsels, cumulatively suffice to establish the statutory authority of the Attorney General to hire a special counsel for a particular investigation.

I’ll add only one additional consideration here to the government’s and Chief Judge Howell’s comprehensive and compelling treatments:  If Miller and Concord were correct that the statutes in question do not vest the Attorney General with appointment authority to hire special counsels, not only would that call into question 140 years of such appointments, but it would also mean that there’s no statutory authority for the AG to create an employment position of “special counsel” or “special prosecutor” in the first instance (apart from appointing individuals to perform those roles).  And that’s the least of it.  If Miller and Concord were correct that the statutes in question were inadequate to authorize the AG to create and fill special counsel positions, it’s not clear where the Attorney General would get the authority to create and fill countless attorney and investigative positions in Main Justice that Congress has not specifically established, for it’s those very statutes that have long been understood to establish such authority to create and fill such DOJ positions.  To take the example closest to home, the Attorney General would not have had authority to create the position of “Deputy Assistant Attorney General” in various DOJ components, and Attorney General Holder therefore would not have had authority to appoint me to such a position in OLC in 2009.  Nor would there have been authority for the AG to create the position of Deputy Solicitor General, or to have appointed Michael Dreeben to that position.  (Dreeben is the lead author on the government’s brief in Miller and will argue the case next Thursday.)  [UPDATE:  At oral argument on November 8, Judge Srinivasan asked Miller’s counsel about precisely this question–only using as an example the fact that AG Eric Holder appointed Srinivasan himself, from outside DOJ, to be Deputy Solicitor General in 2011.  Counsel could not offer any basis for distinguishing that case from this one.]  The Miller/Concord argument about an absence of statutory vesting of appointment authority thus proves far too much.

For all of these reasons, Miller’s and Concord’s ultra vires argument is unlikely to get much traction with the court.

  1. Was Rod Rosenstein the “Head” of the Department of Justice for Purposes of the Mueller Appointment?

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

A brief reminder of the context:  On March 2, 2017, Attorney General Sessions announced his recusal “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”  Importantly, and as Sessions himself later explained to the Senate Select Committee on Intelligence, 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.)

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 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.”[3]  And three weeks after he became “Acting” Attorney General for purposes of the Russia investigation, Rosenstein appointed Mueller to be Special Counsel, with Rosenstein supervising the investigation.

Appellant Miller argues that a case-specific recusal by the AG is not a “disab[ility]” under § 508(a) that authorizes Rosenstein to exercise the AG’s duties and functions with respect to the matter from which the AG is recused.  For the reasons elaborated in the government’s brief (at pp. 47-50) and in Chief Judge Howell’s opinion (pp. 84-90), I think that this statutory argument is wrong, at the very least when the recusal is (in Chief Judge Howell’s words) “due to a legal impediment to the performance of [the AG’s] functions, such as 28 C.F.R. § 45.2.”

Miller appears to make an additional argument that sounds in the Constitution itself, however.  He asserts that if the Special Counsel is, indeed, an “inferior” officer whose appointment Congress vested in the Attorney General, the Appointments Clause would prohibit the AG from voluntarily and completely delegating that appointment authority to someone else, such as the Deputy Attorney General.  He then adds that this is effectively what Sessions has done here:  Sessions’s recusal, Miller claims (Reply Br. at 25), “was only for purposes of overseeing the Russia investigation that began in 2016; it did not disable him as the Head of the Department under the Appointments Clause from appointing the Special Counsel as the investigator (assuming such statutory authority existed)” (emphasis added).  And because (according to Miller) Sessions himself could have retained the authority to decide whether to appoint a Special Counsel, he remained the “Head” of DOJ for that purpose, and thus he effectively delegated that appointment authority to someone (Rosenstein) who is not the Head of the Department, something the Appointments Clause forbids.

This argument depends, then, on two legal assumptions: (i) that the Appointments Clause prohibits a Head of Department to delegate to someone else his own vested authority to appoint an inferior Officer; and (ii) that the law did not require Sessions to recuse himself from deciding whether or not to appoint a Special Counsel for the Russia investigation.

As to the first assumption, it’s actually unresolved whether the Appointments Clause allows the party vested by Congress with the authority to appoint inferior officers—the President or a court of law or, as here, a Department Head—to delegate that appointment authority to someone else (assuming Congress has conferred such a power of delegation) in a case where the Department Head is not disabled from retaining and exercising the appointment authority himself.

As a 2005 OLC opinion explains, it’s fairly clear the Appointments Clause allows “much of the legwork of the appointment process to be delegated to a subordinate”—at least so long as the ultimate question of appointment remains with the Department Head (“so long as each nomination is submitted to the Secretary . . . for approval (whether individually or in groups) and each appointment is made in the name of the Secretary . . . (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer)”).  Here, however, that’s not what happened:  Sessions did not purport to retain the authority to approve or reject Rosenstein’s appointment of Mueller, and he took no action to sign off on or disapprove that appointment.  It’s plain that both Sessions and Rosenstein construed Sessions’s recusal to cover the matter of deciding whether to appoint a Special Counsel, such that that appointment function, like supervision of the Counsel, is entirely in Rosenstein’s hands.  Would that delegation to Rosenstein (say, for example, pursuant to the AG’s general delegation authority, 28 U.S.C. § 510) be constitutional if Sessions were not legally compelled to recuse from the appointment function and thus were not “disabled” from doing so?  The 2005 OLC opinion expressly declined to answer that question:  “The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. . . .  [N]either the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent.   W[e] do not attempt to resolve the question here . . . .”

Chief Judge Howell concluded (see pp. 90-91) that the Department Head can delegate the appointment authority to another official, just as “others may exercise the executive power on the President’s behalf.”  It does not follow, however, that because the President may delegate a general “executive power,” including an authority Congress has conferred upon her by statute—something that is, as Chief Judge Howell notes, “well-established”—he may likewise delegate away a power, such as the power to sign or veto legislation, or the pardon power, or as here, the power to appoint an inferior officer, that the Constitution specifically assigns to the President.  That is not a “well-established” practice—indeed, as far as I know it’s virtually never done.  Moreover, the Executive branch has concluded (see the authorities cited at page 115 of this other 2005 OLC opinion, issued just three weeks before the opinion cited above) that there is at least one such express constitutional authority—the power to sign or veto a bill—that the President may not delegate.  And in the very opinion in which OLC stated that it remained an open question, the Office cited various historical Attorney General and other DOJ opinions (see pp. 111-15) that consistently assumed the President cannot delegate his constitutional authorities to appoint and commission officers (see art. II, § 3 (the President “shall Commission all the Officers of the United States”).

So is a Department Head precluded from delegating a vested authority to appoint an inferior Officer in a case where the Department Head himself is capable of making the appointment, just as the President may not delegate his veto authority?  Although, as noted above, the answer to that question has never been definitively decided by any of the three branches, the Supreme Court’s recent decision in Lucia points strongly against the idea that such a delegation is permissible.  In that case, after all, that’s exactly what had happened:  The Securities and Exchange Commission—the Head of the Department—had delegated to lower-level employees the decision whether to appoint Administrative Law Judges.  If such a delegation were permissible with respect to inferior officers, it would have been unnecessary for the Court to decide the question presented in the case, namely, whether the ALJs were, in fact, officers or employees.  The Court and the parties, however (including the Solicitor General on behalf of the SEC), proceeded on the (unstated) assumption that the Commission could not delegate its appointment authority if the ALJs were inferior officers, notwithstanding a general delegation statute (15 U.S.C. § 78d-1) that gave the Commission a general authority to delegate “any of its functions.”  “[I]f the Commission’s ALJs are constitutional officers,” wrote Justice Kagan for the Court, “Lucia raises a valid Appointments Clause claim.”

Therefore there’s some force to Miller’s argument that if the Special Counsel is an inferior officer, Sessions could not constitutionally delegate to Rosenstein the authority to decide whether to appoint such a Special Counsel assuming Sessions himself were capable of making the appointment decision.  (It’s noteworthy in this respect that the government does not defend Chief Judge Howell’s alternative holding, at pages 90-92 of her opinion, that the AG could simply delegate the appointment authority to the DAG pursuant to his general delegation authority, 28 U.S.C. § 510, even if he were not legally recused from making the appointment decision.  I take this as an implied acknowledgement that if the Appointments Clause applies to Mueller’s appointment, the Attorney General could not delegate his appointment authority to another official if he himself is legally capable of making the appointment.  Of course, if (as I’ve suggested) the Appointments Clause is inapposite here, then a § 510 delegation of the AG’s appointment authority to the Deputy Attorney General would be entirely unobjectionable.)

Miller is on much thinner ice, however, with respect to his second crucial assumption—i.e., that Sessions was not legally precluded from deciding whether to appoint a Special Counsel.  Sessions and Rosenstein have acted on the assumption that Sessions’s required recusal does extend to that appointment function.  And they are right to do so.  it’s fairly clear, I think, that in May 2017 it would not have been lawful for Sessions to have interjected himself in the decision whether to appoint a Special Counsel for an investigation from which he had already been required to recuse.

Consider, for example, the criteria at play in the question whether to appoint an outside counsel.  Rosenstein technically did not make the appointment pursuant to the DOJ Special Counsel regulations (presumably because those regulations do not contemplate the appointment of a special counsel for a counterintelligence investigation, which is in large measure what the Russia investigation is).  Presumably, however, he employed the same standard as the one found in the regulation, or something very close to it—namely, he probably concluded that the investigation of the matter 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 circumstance.”  On the day of the appointment, Rosenstein announced that he had “determined . . . based upon the unique circumstances [that] the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command,” and that “a Special Counsel is necessary in order for the American people to have full confidence in the outcome.”  The appointment order itself added that Mueller was appointed “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.”

Could Attorney General Sessions himself have retained the ultimate authority to make such a call—to weigh considerations such whether DOJ had a conflict of interest; whether some other “extraordinary circumstance” warranted an appointment of a counsel who exercises a degree of independence from the normal chain of command; whether “a Special Counsel is necessary in order for the American people to have full confidence in the outcome” and “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election”?  That’s hard to imagine.  Say, for example, that Sessions had countermanded Rosenstein’s appointment of Mueller.  In light of Sessions’s involvement in the Trump Campaign, wouldn’t it be fair to say that such a reversal—and even the decision whether or not to reverse or ratify the appointment of a special counsel—would be a form of “participation in [the] investigation [that] may result in a personal, financial, or political conflict of interest, or the appearance thereof”? (quoting 28 U.S.C. § 528, which is the authority for the relevant DOJ recusal regulation, 28 C.F.R. § 45.2(a)(2)).  I think it would be.

And if that’s right, then Attorney General Sessions did not in fact have the authority to decide whether to appoint a Special Counsel, to reverse Rosenstein’s decision, or to decide who the Counsel would be.  Accordingly, because the Attorney General himself was legally disabled from making that decision, the “Head” of the Department for such a function was the “Acting” Attorney General, Rod Rosenstein.[4]

* * * *

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] In its brief in the district court, the government listed these examples, among others:

  • In 1875, President Grant appointed a special counsel to prosecute the “St. Louis Whiskey Ring,” which involved General Orville Babcock, the President’s personal secretary and close friend.
  • In 1881, President Garfield directed the appointment of a special counsel to assist in handling the “Star Route” case.
  • President Theodore Roosevelt directed his Attorney General to appoint special prosecutors to investigate scandals on several occasions. In 1903, for instance, two attorneys were appointed as special counsel to investigate corruption in the Post Office. And in 1905, Francis Haney was appointed special counsel to prosecute land fraud in Oregon.
  • In 1952, President Truman’s Attorney General appointed a special prosecutor to investigate allegations of corruption in the Department of Justice.
  • Attorney General Robert Kennedy appointed Leon Jaworksi as a special prosecutor to represent the United States in contempt proceedings brought against Mississippi Governor Ross Barnett for violating orders related to the admission of James Meredith to the University of Mississippi.
  • In 1973, of course, President Nixon’s Attorneys General appointed Archibald Cox and (again) Leon Jaworski as special prosecutors for the Watergate investigation.
  • In 1979, President Carter’s Attorney General appointed a special counsel to investigate allegations of questionable financial dealings involving the President’s family’s peanut warehouse.
  • President George H.W. Bush’s second Attorney General appointed three special counsels from outside the Department of Justice during his 14-month tenure: Nicholas Bua to investigate the matter known as the “Inslaw Affair,” which involved allegations against high-level Department of Justice officials; Malcolm Wilkey to pursue allegations involving the House Bank; and Frederick Lacey to conduct a preliminary investigation of loans to Iraq.
  • In 1994, when the Ethics in Government Act briefly lapsed, Attorney General Reno appointed a special counsel to investigate the Whitewater allegations against the President and his former business partners.

[2] That is not all.  5 U.S.C. § 3101 gives each Executive agency the power to hire employees, defined to include officers (id. § 2105(a)).  And because the Attorney General is “the head of the Department of Justice,” 28 U.S.C. § 503, vested with the authority to perform virtually all the functions of the Department, id. § 509, it follows that § 3101 vests him with the authority to hire DOJ inferior officers except where Congress has otherwise specified an alternative manner of appointment.  To be sure, § 3101 itself does not mention the Attorney General in particular.  But that was true, as well, of the appointment authority in the recent Lucia v. SEC case, 5 U.S.C. § 3105, which provides that “[e]ach agency shall appoint as many administrative law judges as are necessary for” hearings governed by the Administrative Procedure Act.  All the parties and the Court in Lucia rightly proceeded on the assumption that the SEC itself—the head of a Department—had the authority to appoint Administrative Law Judges, based solely on that general statute.

[3] 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.

[4] Miller does not argue that in such a case, or a similar situation of AG disability or vacancy (imagine, for instance, that the Attorney General has died or resigned), the Appointments Clause would prohibit such an “acting” Department Head from exercising the authority Congress has vested in the Attorney General to appoint an inferior officer.  And with good reason.  Such a preclusion wouldn’t make much sense, for it would mean that when the office of a Department Head is temporarily vacant, vacant inferior offices in the Department would have to remain unfilled, too, in the many cases where Congress has vested the Department Head with the power to appoint.  Surely the framers did not intend to preclude any such appointment of inferior officers in such a common situation, any more than they intended to preclude the authority of the President to “require the Opinion, in writing, of the principal Officer” of a Department when there is no sitting “principal Officer” or where that officer is legally precluded (such as by a conflict of interest) from providing the opinion in question.  It makes sense, in such cases, that a properly “acting” Department Head, or acting “principal officer,” can perform the constitutional functions of the office in question.