A Quick Primer on the Legality of Appointing Matthew Whitaker as “Acting” Attorney General, and Whitaker’s Power to Influence the Russia Investigation

Attorney General Jeff Sessions resigned from his office yesterday afternoon, at President Trump’s “request.”  The President promptly tweeted:  “We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States.”  [“We”?  Who’s “we”?  A somewhat odd locution, especially in light of Trump’s claim in current litigation that he uses his Twitter account only in his personal, not his official, capacity.]

These announcements raise a bunch of questions, primarily about the legality and length of Whitaker’s appointment, and about what authority Whitaker will have with respect to the Russia investigation of Special Counsel Robert Mueller and other investigations.  Here’s a quick effort to answer some of those questions, based largely on earlier posts in which I discussed the issues in somewhat greater detail.  I’ll update this post if and when further information comes to light.

Q1.  Who’s currently performing the functions of the Attorney General? 

As soon as Sessions resigned, Deputy Attorney General (“DAG”) Rod Rosenstein became authorized to exercise all of the duties of the Office of Attorney General, pursuant to what I’ve called the “AG Succession Act.”  From the time DOJ was established in 1870 until 1953, a statute provided that the Solicitor General would be Acting Attorney General in case of the absence or disability of the Attorney General or a vacancy in the office.  In 1953, Congress enacted a new law, now codified as 28 U.S.C. § 508, which transferred that interim authority to the DAG.  Subsection (a) of the statute provides that “[i]n case of a vacancy in the office of Attorney General” (or in the “absence or disability” of the AG), “the Deputy Attorney General may exercise all the duties of that office [i.e., the office of the Attorney General].”  [UPDATE:  As of Thursday, November 8, Matthew Whitaker is the “Acting Attorney General,” according to DOJ.  See Q2 below.]

Q2.  What’s the authority for Trump to direct Whitaker, instead of Rosenstein, to perform the AG’s functions?

President Trump, however, has said that he will soon—if he has not done so already—direct Matthew Whitaker to perform the AG’s functions and duties, thereby displacing Rosenstein.  As soon as Trump formally directs Whitaker to do so (yesterday afternoon’s tweet presumably didn’t do the trick), Whitaker presumably will take over for Rosenstein in the performance of all those functions and duties. [UPDATE:  As of Thursday afternoon, November 8, Matthew Whitaker is the “Acting Attorney General,” according to DOJ.]  And, just to be clear, that’s a very big deal because the Attorney General is statutorily assigned to perform (or delegate to others) almost all of the functions and duties of the Department of Justice.  See, e.g., 28 U.S.C. § 509.

What’s Trump’s authority for superseding the AG Succession statute?  He’s undoubtedly invoking the Vacancies Reform Act of 1998 (VRA), which provides (5 U.S.C. § 3345(a)(3)) that the President “may direct an officer or employee of [an] Executive agency to perform the functions and duties of [a] vacant office,” provided that the officer or employee has served, for at least 90 days during the year before the vacancy, in a position for which the pay is at least the level of GS-15—a criterion that Matthew Whitaker satisfies.

The Department of Justice’s formal view is that the VRA provides the President with an alternative authority, in addition to the AG Succession Act, to designate who shall perform the AG’s functions and duties during a vacancy in the office. Thus, for example, when AG Alberto Gonzales resigned in 2007, President George W. Bush named the Assistant Attorney General for the Civil Division, Peter Keisler, to be the Acting Attorney General, when the AG Succession Order in effect at the time, issued pursuant to the AG Succession Act, would have assigned those functions to the Solicitor General, then Paul Clement.

As far as I know, however, the “appointment” of Whitaker would be the first time in U.S. history that the President has designated as an “acting” Attorney General someone who was not then serving in an office to which he or she was appointed by and with the advice and consent of the Senate, and it’d be the first time since 1868—i.e., since Congress enacted a specific AG Succession statute—that the “acting” AG would be anyone other than a sitting Senate-confirmed DOJ officer.  (In 1868, Secretary of the Interior Orville Browning served as acting AG for a few weeks while his own (ultimately unsuccessful) nomination to be AG was pending in the Senate.  And in 1848, President Polk named Secretary of the Navy John Mason to serve as acting AG for a few weeks before Isaac Toucey was confirmed.  Mason had himself been the (confirmed) AG just two years earlier.)

Q3.  Is Trump’s appointment of Whitaker as “acting” AG legal?

Perhaps.  But perhaps not.  There are two possible bases for challenging the legality of the Whitaker appointment.

First, OLC might simply be wrong in its conclusion that the VRA is an alternative authority that the President may use in lieu of the AG Succession Act to fill a vacancy in the Office of Attorney General.  John Bies has suggested as much—i.e., that Congress’ office-specific instructions in the AG Succession statute about what should happen when the AG office is vacant should supersede the more general provisions of the VRA.

I haven’t thoroughly researched and considered the question, so I don’t know have a clear view about whether Bies is right.  I have some tentative doubts, however, in light of the particular circumstances surrounding the enactment of the 1998 law.  To be sure, and as OLC noted in footnote 1 of its 2007 opinion, the Vacancies Act that preceded the 1998 VRA expressly excluded its application to the office of the Attorney General, and the version of the VRA that the Senate originally approved in 1998 would have done the same.  Thus, the Senate Report stated that “[w]ith respect to a vacancy in the office of Attorney General, 28 U.S.C. § 508 will remain applicable. That section ensures that Senate confirmed Justice Department officials will be the only persons eligible to serve as Acting Attorney General.”  Congress, however—for reasons that the legislative history doesn’t explain, far as I know —did not include the relevant, § 508-exclusivity provision in the final, enacted version of the 1998 VRA.  I don’t mean to suggest that this settles the question, but it’s a reason to be cautious about assuming that the AG Succession Act remained the exclusive means for the President to designate “acting” AGs after 1998.

Second, there’s a possible constitutional problem in using the VRA to replace a principal officer (such as the Attorney General) with someone who hasn’t been confirmed by the Senate for that office or even for a related office within DOJ.  In a recent concurring opinion, Justice Clarence Thomas argued that such a temporary appointment would violate the Appointments Clause of Article II of the Constitution, Art. II., § 2, cl. 2, which provides that such principal officers must be appointed by the President by and with the advice and consent of the Senate.

[NOTE:  I’ve slightly edited the next two paragraphs.]

There’s probably something to Thomas’s argument, but it’s complicated.  Most significantly, in an 1898 decision, United States v. Eaton, the Supreme Court held that a temporary appointment to a principal office was constitutional–indeed, that if the assignment it merely involves “performance of the duty of the superior for a limited time, and under special and temporary conditions,” the officer is “inferior,” even though during that period the officer is not supervised and removable by a principal officer.  A contrary holding, the Court explained, “would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.” (This would appear to be inconsistent with what we’ve come to think of as the Edmond test for distinguishing inferior from principal offices–which ordinarily requires at a minimum supervision by an officer other than the President–but in Edmond itself, Justice Scalia favorably cited Eaton (“Among the offices that we have found to be inferior are that of . . . a vice consul charged temporarily with the duties of the consul”), in support of the broader acknowledgement that “[o]ur cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes.”  (See also pages 123-124 of this 2003 OLC opinion, relying upon Eaton.)  Thomas’s constitutional concern would also, I think, be misplaced in the usual case, where another Senate-confirmed DOJ officer (such as Rosenstein) is tapped to fill in for the AG, because such temporary service as “acting” AG would be “germane” to the office for which the Senate confirmed the person.  See Weiss v. United States (1994); cf. Shoemaker v. United States (1893) and pages 547-550 of this 1994 OLC Memorandum.

On the other hand, Eaton might not be a complete answer to the Appointments Clause concern in the particular, unusual context of the Whitaker appointment itself.  The appointment in the 1898 Eaton case was exceedingly reasonable under the exigent circumstances there—the Court stressed that it was “for a limited time, and under special and temporary conditions.”  At least some of the Justices on the current Court might be much more troubled, however–as Thomas was with respect to the three-year appointment in SW General (see his footnote 1)–by a “temporary” appointment that might last for many months or years (see Q5, below), especially where, as here, that appointment was to fill a “vacancy” for which the President himself is responsible (he did, after all, make a “request” of Sessions backed up by the threat of imminent removal); where the temporary appointee has not been confirmed by the Senate for his underlying position; where the President might reasonably be seen as appointing a loyalist in a way that deliberately circumvents the Senate’s constitutional role; and where the President did so by bypassing the specific statute designed to deal with the question of AG vacancies—a statute that could have ensured that the temporary AG was someone (Rosenstein) who had been Senate-confirmed to be the Deputy Attorney General, with the Senate’s knowledge that that officer might from time-to-time have to perform the AG’s functions in cases of recusal/disability/vacancy.

Again, I don’t mean to offer a definitive view on whether the Appointments Clause objection would carry the day—suffice it to say that there’s never been an application of Eaton to a situation such as this one, so it’s technically an open question.  [For more on this difficult and complicated constitutional question, see the Op-Ed today by Neal Katyal and George Conway; Michael Dorf’s reaction to Katyal/Conway; and my comments to Mike’s post.]

Q4.  Who would have standing to challenge the legality of the Whitaker appointment?  And when might a court rule on it?

I haven’t yet thought through this question sufficiently, but I assume that anyone who suffers an “injury in fact” by virtue of something Whitaker does would have Article III standing to challenge his appointment in court, at least for purposes of enjoining that action.  And as I noted above, almost all of DOJ’s actions are taken pursuant to authorities Congress has assigned to the Attorney General.  For example, all litigation in which the United States, an agency, or officer thereof is a party or is interested “is reserved to officers of the Department of Justice, under the direction of the Attorney General.”  28 U.S.C. § 516.  Indeed, if recollection serves, the AG himself technically signs many DOJ legal pleadings, such as briefs.  The AG also issues regulations, approves certain seeking certain criminal sentences, and much else.  Anyone adversely affected by any of these actions might challenge the legality of Whitaker’s appointment.

As I wrote earlier, however, it might be several months, if ever, before any court, let alone the Supreme Court, adjudicates the questions; it’s far from certain that any such challenge would be successful; and in the meantime Whitaker could have a significant impact at DOJ, and on the Mueller investigation in particular.

Q5.  How long could Whitaker serve as “acting” Attorney General?

At least until June 15, 2019, according to the VRA, assuming the Senate does not confirm a Trump nominee to be Attorney General in the interim.  That’s 210 days from yesterday—a term that would be much longer than that of any other “acting” AG in history.  (In the Lyndon Johnson Administration, Nick Katzenbach served as acting AG for 159 days, and Ramsey Clark for 150 days, while their nominations to be confirmed as Attorney General were pending.  The longest tenure of an acting AG who was not simultaneously nominated to the office was the 133 days that Interior Secretary Orville Browning served in 1868, while the Senate was considering whether to reconfirm Henry Stanbery as AG.  (Stanbery had resigned as AG in order to help Andrew Johnson’s defense at his impeachment trial.  After the trial, the Senate refused to confirm him anew.))

And Whitaker’s term might last even longer than that—perhaps much longer.  If Trump does not nominate anyone to be AG by June 15, then Whitaker’s service as “acting” AG must end then.  I assume, however, that Trump will make a nomination by that date—perhaps very close to that date.  (Under the VRA, Whitaker himself can’t be the nominee while he’s the Acting AG.)  And if Trump does so, then under the VRA Whitaker could continue to perform the Attorney General’s duties and functions for many months or years after that, until the Senate finally confirms a new Attorney General.  (The details can get complicated, depending on what’s happening in the Senate.  See the answers to Questions 23, 25 and 28-37 of this OLC memorandum. and pages 11-13 of this Congressional Research Service Report.)

Q6.  Is Whitaker qualified to perform the functions of Attorney General?

Technically, yes, at least as a matter of the VRA’s requirements.  As this 2014 Q&A reveals, however, there’s plenty of reason for many people to be anxious about his new role, not least of which is his list of “bad” Supreme Court decisions, which extends from Marbury v. Madison to all of the “New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Whitaker has also demonstrated, in the context of the Clinton email investigation, a willingness to disregard (or at least ignorance of) consensus norms and legal views held throughout the Department of Justice.  He opined in 2016 that he would have indicted Hillary Clinton for having classified materials on her nonsecure email server. As the recent DOJ Inspector General Report explains at great length, however (see, e.g., pages 29-34, 163-167 and 253-263), there was a consensus view among virtually everyone involved in the investigation, both at the FBI and in DOJ, that there was no evidence (let alone proof beyond a reasonable doubt) that Clinton had the state of mind required for criminal culpability.  In particular,“[t]here was no evidence that the senders or former Secretary Clinton believed or were aware at the time that the emails contained classified information,” . . . “no evidence that former Secretary Clinton had any contemporaneous concerns about the classified status of the information that was conveyed on her unclassified systems, nor any evidence that any individual ever contemporaneously conveyed such concerns to her,” and no “evidence that Clinton set up her servers or private email account with the intent of communicating or retaining classified information, or that she had knowledge that classified information would be communicated or retained on it.”  An indictment of Clinton would thus have been deeply inconsistent with longstanding DOJ practices, including declinations even in some cases (such as that involving former Attorney General Gonzales) where the subjects, unlike Clinton, were aware of the classified nature of the information that they had retained in a nonsecure fashion.  If Whitaker believes that prosecution was appropriate in that case, he might be the sort of Acting Attorney General who finds himself at sharp odds with many of the career prosecutors throughout DOJ.

Q7.  Would Rosenstein continue to have a role in supervising the Mueller and/or SDNY investigations?

He might.  That’s really up to Whitaker.  The Deputy Attorney General does, after all, have general responsibility to “direct the activities of [DOJ] organizational units as assigned,” subject to the AG’s “general supervision.”  Presumably that general practice will continue to apply to the SDNY investigations, and almost all other criminal matters.  Whitaker could also choose to supervise Mueller through Rosenstein, or not—but the now-applicable regulations ultimately afford Whitaker, not Rosenstein, certain powers of supervision over the Special Counsel, discussed below.

Q8.  Is Whitaker required to recuse from the Russia investigation? 

I don’t know.  A group of Lawfare writers argue that such a question arises under 28 CFR 45.2 because Whitaker chaired the 2014 Iowa state treasurer campaign of Sam Clovis, who then served in the Trump campaign and administration and who, as Rebecca Ballhaus notes, is now a grand jury witness in the Mueller investigation.  I don’t have enough information to offer any views on whether and to what extent Whitaker’s relationship with Clovis might require Whitaker to recuse from some or all investigations.  According to the Washington Post, unnamed “Justice Department officials” have said that Whitaker “will follow the regular process for reviewing possible ethical conflicts as he assumes the new job of the nation’s top law enforcement official. That process involves Justice Department ethics lawyers reviewing an official’s past work to see if there are any financial or personal conflicts that preclude the official from being involved in specific cases.”

Q9.  Is Whitaker hostile to the Mueller investigation?

There’s good reason to assume he is, at least if his public arguments before he joined DOJ are any indication.  Most notably, in 2017 Whitaker argued, wrongly, that Mueller isn’t authorized to inquire into Trump’s and his family’s finances.  (At the very least, Mueller is authorized to do so if such matters are germane to the Russian efforts to influence U.S. elections.)  He also defended Donald Trump Jr.’s 2016 meeting with a Russian lawyer in Trump Tower, saying in July 2017 that ”[y]ou would always take the meeting.”  Much more along these lines from Ruth Marcus, who concludes that “[t]o review Whitaker’s CNN appearances is to see a loyalist determined to see no evil — political ham-handedness perhaps, but nothing approaching criminality — in the conduct of the president and those around him.”

On the other hand, perhaps his time among, and experience with, dedicated and serious-minded DOJ attorneys have tempered Whitaker’s earlier views.

Q10.  Can Whitaker stymie the Mueller and/or SDNY investigations?

Sure, to some extent.  But how he might do so is a somewhat complicated question.

As for the SDNY investigations, although there’s an historical norm that the U.S. Attorney in Manhattan has considerable “independence” from Main Justice micromanagement, there’s little doubt that Whitaker will now have the legal authority to direct the U.S. Attorney in SDNY what to do and what not to do.

Things are somewhat different for Mueller, because currently he has a greater degree of legal independence than does a U.S. Attorney.  Even so, there’s plenty Whitaker can do to affect Mueller’s investigations.  Here’s a bit of background I recently offered about an acting Attorney General’s relationship to the Special Counsel:

In his May 17, 2017, Order appointing Mueller as a Special Counsel for the joint criminal/counterintelligence Russia/election investigation, then-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 a recently filed brief (see 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.

In particular, at the outset of each “fiscal year,” the Acting Attorney General may determine “whether the investigation should continue” and, if so, what its annual budget should be.  28 C.F.R. § 600.8(a)(2).  In this respect it’s surely noteworthy that in July 2017, Whitaker pondered on CNN the “scenario” that “Jeff Sessions is replaced” and his replacement “doesn’t fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt.”  I don’t know for certain when the fiscal year for the Special Counsel will end and thus when Whitaker will have such control over Mueller’s budget for the following twelve months.  But if the next fiscal year does not begin until October 2019, as with most government functions (see this story, suggesting that that’s the case), then presumably Whitaker will not be able to use his budget-setting authority to dramatically affect the Mueller probe for many months.

Mueller is also 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).

Moreover, the Acting AG has considerable authority to determine what to do with the Special Counsel’s “confidential report” at the end of the investigation, id. § 600.8(c). “explaining the prosecution or declination decisions reached by the Special Counsel”—including whether its “public release . . . would be in the public interest.”  Whitaker might also have the authority to decide whether and to what extent Congress and/or the public should have access to any counterintelligence investigation report(s) (and/or “letterhead memos”) that Mueller might write concerning the Russian threat to the U.S. electoral system and whether President Trump is in any way compromised in his ability to deal with that threat.

Of perhaps greatest significance in terms of Whitaker’s means of control, he “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.”  Id. § 600.7(b).  (Mueller has regularly consulted with Rosenstein about investigative steps, and provided him with “Urgent Reports” of “major developments in significant investigations and litigation,” Justice Manual § 1-13.100, in advance of taking any such actions.)  When this happens, Whitaker must “give great weight to the views of the Special Counsel,” but after doing so he might still “conclude that the [planned] action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” in which case—as the government’s recent brief confirms (pp. 16-17)—Whitaker may countermand Mueller’s proposed course of action.

Even so, however, the regulations also guarantee that the Special Counsel will generally “function[] with substantial independence and little supervision.”  64 Fed. Reg. 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.  In particular, § 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 Whitaker may not countermand Mueller’s decision to take a particular “investigative or prosecutorial step” other than in cases where Whitaker, 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).

One other thing:  Susan Hennessey and Ben Wittes speculate that someone such as Whitaker might leak information about the Mueller investigation to the White House or to members of Congress—a troubling prospect in light of Katie Benner and Maggie Haberman’s account that White House Chief of Staff John Kelly “has privately described [Whitaker] as the West Wing’s ‘eyes and ears’ in a department the president has long considered at war with him.”  I hope and trust that no ethical officer supervising the investigation would ever consider making such leaks to those who might be the target or subject of an investigation, but of course that hypothetical breach can’t be entirely ruled out here.

In sum, although it’s difficult to assess in advance how much Whitaker could and would do to stymie the ongoing investigations, the risks are considerable, even if not unlimited.

Q11.  Under what circumstances could Whitaker lawfully fire Mueller?

Subsection 600.7(d) of the governing Special Counsel regulations provides that the Attorney General (here, the Acting Attorney General)—indeed, only that officer—may discipline or remove the Special Counsel.  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 Whitaker did remove Mueller, he’d be required to explain that removal to the Chair and Ranking Minority Member of the Judiciary Committees of each House of Congress.  Id. § 600.9(a)(2).

There are many legitimate grounds that could hypothetically justify removing Mueller, 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.  So, too, if the Special Counsel willfully violated the law, or demonstrated gross incompetence, removal by Whitaker (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 recent 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, if Whitaker properly forbids Mueller from taking a step that is, in Whitaker’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 Whitaker’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.  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 Whitaker in theory has greater legal authority to remove Mueller than the AG’s authority 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).

It’s highly unlikely, however, that Robert Mueller will do any of those things that would warrant his removal under the regulations.  And if he doesn’t do any such things, the regulations provide important limits on Whitaker’s removal authority—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).

As I argued at length in a post last week, if the regulations are properly read, 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 Whitaker 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 Whitaker an unfettered authority to remove Mueller for any and every case of “insubordination,” i.e., for any and all refusals to comply with Whitaker’s instructions or directives.  To be sure, if Whitaker issues a lawful instruction, Mueller’s willful disregard of that instruction might be “good cause” for discipline, including perhaps removal in serious cases.  But if Mueller reasonably concludes that Whitaker’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 failure to follow such an order presumably would not be a “good cause” for removal.  As Judge Friedrich explained in her recent opinion in the Concord Management case 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.

Concededly, some have argued that a “good cause” removal criterion can be read more capaciously—at least where a narrow reading would raise a serious constitutional question.  See, e.g., John F. Manning, The Independent Counsel Statute: Reading “Good Cause” in Light of Article II, 83 Minn. L. Rev. 1285 (1999).[1]  For the reasons I offer at much greater length in last week’s post, however, the DOJ regulations can’t fairly be read to confer upon the AG such a broad removal authority; and, as I explain in that and the succeeding post, the proper reading of the regulation doesn’t raise any serious constitutional questions.  (It’s possible, albeit unlikely, that the panel of the Court of Appeals for the D.C. Circuit that will hear argument this afternoon, in a case involving a challenge to the legality of Rosenstein’s appointment of Mueller, will offer some views about the scope of the removal authority in any opinion it issues.  In my post last week, for what it’s worth, I suggested that the court need not and should not opine on that question.)

Q12.  Could Whitaker unilaterally loosen the regulatory constraints on his supervision of Mueller?

An Attorney General may, of course, jettison the DOJ Special Counsel regulations that apply to Mueller, or amend them to eliminate the guarantees of Special Counsel independence in §§ 600.7(b) and (d) that I discuss in Q10 and Q11 above, at least so long as he can provide a “reasoned explanation for the change,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016), and the decision is not otherwise arbitrary or capricious.  See In re Sealed Case, 829 F2d 50, 56 (D.C. Cir. 1987).  And once he has the authority to perform the Attorney General’s functions, Whitaker will theoretically be empowered to rescind the 1999 regulations.

I’d be very surprised if he does so, however, for a couple of reasons.  For one thing, it’d be quite audacious for an acting Attorney General to rescind AG regulations—perhaps even unprecedented.  There’s simply no good reason not to wait until a Senate-confirmed successor is in office who can make such a momentous decision.  Therefore if Whitaker did any such thing, the likely political blowback would likely be intense.

Second, as I explained in earlier posts, it’s not even clear that rescinding the 1999 regulations would alter Mueller’s independence, because it’s probably the case that those regulations don’t apply of their own accord to the Mueller investigation.  It’s probably fair to read the “independence” protections of §§ 600.7(b) and (d) to apply of their own accord only to “Special Counsels” who are appointed pursuant to the regulations themselves.  For example, the regulations did not apply to the Special Counsel for the Scooter Libby investigation, Patrick Fitzgerald, because he was appointed from within DOJ, and the regulations themselves were promulgated only for cases in which Special Counsels are appointed from outside the Department (see 28 C.F.R. § 600.3(a)).  “[M]y conferral on you of the title of ‘Special Counsel’ in this matter,” Acting AG Comey wrote to Fitzgerald, should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.”  See also United States v. Libby, 498 F. Supp. 2d 1, 7 n.12, 10 (D.D.C. 2007).  (The Acting Attorney General in that case actually afforded Fitzgerald greater assurances of independence than the regulations prescribe, not fewer.  See id. at 6-7, 10.)

That appears to be the case here, well.  Because the Mueller investigation is not only a criminal investigation but also, at least in part, a counterintelligence investigation—thus going beyond the scenario that the 1999 regulations contemplate—Rosenstein did not appoint Mueller pursuant to the regulations themselves; instead, he invoked solely the Attorney General’s statutory delegation authorities.  Accordingly, it’s probably fair to infer that the “independence” provisions of §§ 600.7(b) and (d) apply to Mueller only because Rosenstein ordered that they would do so (subsection (c) of the Rosenstein Order directed that Sections 600.4-10 of the DOJ Regulations are to be “applicable” to Mueller)—not because the regulations themselves require it.

And therefore, as I wrote earlier, if an Attorney General were to rescind or amend the regulations, that likely wouldn’t affect Mueller’s independence:  the Acting AG would instead have to rescind or amend Rosenstein’s May 2017 Appointment Order in order to alter the supervision and/or removal standards that apply to Mueller.

Rosenstein himself almost certainly would never do such a thing—i.e., amend his Order to eliminate the protections of §§ 600.7(b) and (d)—because presumably that would mean reneging on an understanding he reached with Mueller as a condition of the appointment, and because there would (or should, anyway) be a huge political cost to making such a change.  Likewise, such a rescission of the independence protections guaranteed by Rosenstein’s May 2017 Order should be unthinkable for Whitaker, too, if for no other reason than that it could result in a massive institutional revolt and trigger a political firestorm that would make the Saturday Night Massacre look like a Sunday afternoon picnic.  We shall see.

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[1] In his recent brief in the Supreme Court Lucia case, for instance, involving a similar statutory removal provision, Solicitor General Francisco 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).