Published by The Lawfare Institute
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The U.S. Court of Appeals for the D.C. Circuit has finally resolved one of the most pressing questions roiling the American body politic: whether George Conway or Steven Calabresi is correct regarding the constitutionality of Robert Mueller’s appointment as special counsel.
No, the case isn’t actually titled Conway v. Calabresi. But the legal issues at stake in In re Grand Jury Investigation—concerning Roger Stone associate Andrew Miller’s challenge to subpoenas issued by the special counsel’s office—directly map onto Calabresi’s argument against the constitutionality of Mueller’s appointment under the Appointments Clause, on the one hand, and Conway’s rebuttal to it on Lawfare, on the other. The D.C. Circuit unanimously sided with Conway, affirming the district court’s order finding Miller in civil contempt.
Miller first geared up to fight the subpoenas to appear before the grand jury and to produce documents in May and June of 2018—coincidentally, around the same time Calabresi began rolling out his argument against the constitutionality of Mueller’s investigation. Calabresi, a conservative law professor at Northwestern University Pritzker School of Law and Federalist Society co-founder, wrote that Mueller’s role as special counsel violates the Appointments Clause, in that Mueller is acting as a “principal officer”—an official who must be nominated by the president and confirmed by the Senate—despite being appointed by Deputy Attorney General Rod Rosenstein. Conway, by contrast, argued that Mueller is an “inferior officer” and, therefore, that Senate appointment is not required.
From the beginning, Miller’s argument has echoed Calabresi’s—sometimes nearly verbatim. While his counsel has incorporated other arguments along the way, Miller’s case has always focused to some extent on the assertion that Rosenstein had unconstitutionally appointed Mueller as a principal officer. Like Calabresi, Miller rested his case for Mueller’s status as a principal officer in part on the argument that Mueller has the power and stature of a U.S. attorney—a role that is usually filled by a presidential nomination and confirmation by Congress.
There are many reasons why this is not a convincing argument, as Conway noted in his piece for Lawfare—beginning with the fact that there is no reason to assume that U.S. attorneys are principal officers, and plenty of evidence, including a 1978 Office of Legal Counsel opinion, to suggest that they are not. During oral arguments in Miller’s case, D.C. Circuit Judge Sri Srinivasan seemed to express skepticism regarding this aspect of Miller’s argument.
The D.C. Circuit’s opinion in Miller’s case doesn’t bother to address this question, though. The opinion is surprisingly short, given how long it took the panel of Judges Srinivasan, Judith Rogers and Karen LeCraft Henderson to rule on the matter. (Oral arguments took place in early November 2018.) Written by Rogers, the opinion makes quick work of Miller’s Appointments Clause argument. Mueller, the court writes, is an inferior officer under the standard set forth by the Supreme Court in Edmond v. United States, requiring that such an officer be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”
Miller, along with Calabresi, argued that Mueller must be a principal officer because of how little oversight Justice Department leadership provides over his work—pointing to how the special counsel regulations governing Mueller’s office limit the attorney general or acting attorney general’s ability to dismiss Mueller to cases in which there is “good cause.” The court counters that the attorney general may revoke those guidelines at any point—which effectively means that Mueller is subject to more oversight than the independent counsel whose appointment was upheld in Morrison v. Olson, whom the Supreme Court found to be an inferior officer. The attorney general’s power to remove that independent counsel, after all, was limited by an act of Congress, not an executive order over which the attorney general’s office itself has power.
As Conway argued on Lawfare, “not only does the special counsel regulation not take power away from the executive branch, but the internal rearrangement of authority it brings about within that branch could be relatively easily undone by a presidentially removable principal officer.”
The D.C. Circuit agreed: “The Attorney General, an officer appointed by the President with the advice and consent of the Senate, has authority to rescind at any time the Office of Special Counsel regulations or otherwise render them inapplicable to the Special Counsel.”
The court dealt with Miller’s other arguments against the special counsel’s appointment with similar speed. As to Miller’s position that Congress has not authorized Mueller’s work by statute, the court simply pointed to United States v. Nixon and In re Sealed Case (involving the Iran-Contra investigation), which established that the attorney general holds the statutory authority to appoint a special counsel (or a special prosecutor and independent counsel, respectively). (After oral arguments in Miller’s case, his attorney, Paul Kamenar, complained that the D.C. Circuit was “hung up” on Nixon and Sealed Case.) The court likewise made quick work of Miller’s contention that then-Attorney General Jeff Sessions’s recusal from the Mueller investigation was not sufficient to vest Rosenstein with the power as acting attorney general to appoint a special counsel. Calabresi’s “white paper” on Mueller’s appointment touched neither of these issues.
This is the first time that an appeals court issued a binding opinion on the constitutionality of the Mueller investigation. But it is far from the first time a federal judge has done so. Besides Chief Judge Beryl Howell, whose ruling in the Miller case the D.C. Circuit upheld, Judge Dabney Friedrich of the U.S. District Court for the District of Columbia has also found Mueller’s appointment to be constitutional in the face of a challenge by Concord Management and Consulting, a defendant in the special counsel’s case against the Internet Research Agency. So has Judge T.S. Ellis III of the Eastern District of Virginia in Paul Manafort’s case in that jurisdiction. Judge Amy Berman Jackson, also of the District of Columbia, has likewise ruled on the legality of Mueller’s appointment in Manafort’s now-defunct civil suit against the Justice Department, though not on constitutional grounds.
Miller, according to the New York Times, is planning to appeal the D.C. Circuit’s decision—either for a rehearing en banc or directly to the Supreme Court. But so far Mueller is five for five on challenges to his authority to conduct this investigation. Andrew Miller probably shouldn’t hold his breath.