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

On Thursday, I attended the oral argument in Miller v. United States, No. 18-3052, a case challenging the constitutionality of Robert Mueller’s appointment to serve as “Special Counsel” for the Russia investigation.  The panel of the U.S. Court of Appeals for the D.C. Circuit consisted of Judges Henderson, Rogers and Srinivasan).  I recently published a series of posts here at Just Security (linked below) concerning the facts and merits of the case.

The oral argument itself was not especially eventful or surprising.  None of the judges expressed any skepticism about the legality of Mueller’s appointment (although I should add that Judge Henderson did not ask any questions).  (See George Conway and Ben Wittes for a blow-by-blow.)  I’m always loath to predict cases based upon oral arguments, but this one merely confirmed  the briefs and the law that I’ve already discussed at length:  I think it’s fairly safe to wager that the panel will affirm Chief Judge Howell’s judgment, even if it might not embrace every particular aspect of the analysis in her opinion.  I’ve added minor updates in each of my earlier posts to reflect discrete things of interest that arose during the oral argument, but I think it’s unlikely any of them will materially change how the court resolves the case.

In terms of the broader interest in the investigation going forward, however, two things about the argument are worth flagging here.

First, 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.]

As I’ve written in some detail, there’s a good deal of confusion about the grounds on which the Acting Attorney General (now Matthew Whitaker) may fire Mueller.  Subsection 600.7(d) permits removal only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”  Well, what about if Mueller refuses to follow an order from Whitaker to do, or not to do, something?  Is that a permissible ground for removal?

Judge Srinivasan homed in on 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 explained in my earlier posts, 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.

Second, at the outset of yesterday’s argument, Judge Henderson, on behalf of the whole panel, asked counsel to assume for purposes of the argument that there hadn’t been any change in officers at the Department of Justice (i.e., to pretend that Jeff Sessions remained AG, with Rod Rosenstein supervising the Mueller probe).  She noted that the panel would soon issue an order asking the parties to address the recent developments, and the court did just that today:

It is ORDERED by the Court on its own motion that each party submit a supplemental brief addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case. Each party’s brief is to be limited to ten pages and is to be filed and served simultaneously no later than the close of business on Monday, November 19, 2018.

Perhaps I’m missing something, but I don’t see how the President’s designation of Matthew Whitaker as the new Acting Attorney General will have any material effect on any of the issues in the Miller case.  If anyone thinks otherwise, please let me know so that I can consider it, thanks.

[UPDATE, November 19:  Unsurprisingly (and correctly), DOJ’s supplemental brief argues that the Whitaker designation as Acting AG doesn’t affect the Miller case.  And in his own supplemental brief, Miller agrees.]

(On the separate questions of whether the Whitaker appointment itself was lawful, and what Whitaker might try to do to stymie the Mueller investigation, see my post here and, especially, my post with Walter Dellinger here.)

* * * *

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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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).