Congress Executive Branch

The D.C. Circuit Considers the Constitutionality of Bob Mueller’s Appointment

George Conway, Benjamin Wittes
Friday, November 9, 2018, 4:15 PM

The president shouldn’t hold his breath for the court to have any serious objections to the special counsel’s appointment.

Credit: Flickr/Cliff

Published by The Lawfare Institute
in Cooperation With

A while back, a conservative law professor named Steve Calabresi penned a short paper, an op-ed in the Wall Street Journal and two more op-eds for The Hill, advancing a novel legal theory: that the Mueller investigation was unconstitutional. The argument sparked a flurry of attention in conservative circles. The Federalist Society held a forum on it. Sean Hannity ran a segment on it. And the President of the United States bought into it:

Just Friday morning, Trump seemed to allude once again to Calabresi’s argument, according to a tweet from reporter Eamon Javers:

And in his own tweet later Trump referred specifically to Mueller’s lack of Senate confirmation:

The legal argument underlying all this ferment was never any good. But ignoring the naysayers—including one of us (Conway), who argued on Lawfare that it was clearly wrong—lawyers with clients involved the Mueller investigation leapt on it and began arguing it in court.

Support Lawfare

Thursday they ran into a buzz saw: the U.S. Court of Appeals for the D.C. Circuit, where the case—In Re Grand Jury Investigation—was argued before a courtroom with a couple dozen reporters and the spectator seating section half full.

The case began strangely. It was as though a ghost hovered over the courtroom—the ghost of attorneys general past. The presiding judge, Karen LeCraft Henderson, began with an oblique instruction to counsel: that argument should proceed as though it happened Wednesday morning, not Thursday, and without reference to what she called the “events” of Wednesday afternoon—by which she meant the firing of Jeff Sessions. On those events, she said, the three-judge panel would likely ask for supplemental briefing. President Trump’s name never came up. (This morning, the D.C. Circuit issued this order calling for supplemental briefing “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.”)

So the argument proceeded as though the president had not just dismissed the attorney general over precisely the investigation at issue in court. It proceeded as though there were no issue about whether the new acting attorney general, and thus Mueller’s new boss, Matthew Whitaker, means to rein the investigation in, or shut it down altogether. It proceeded as though there were no issue about whether Whitaker, who, like Mueller, hasn’t been confirmed by the Senate, was validly appointed under the very same Appointments Clause under which Mueller’s appointment is being challenged at this very argument. (In fact, one of us argued just yesterday that Whitaker’s appointment does indeed violate the Appointments Clause.) The argument proceeded as though we were living through ordinary times and this was just another ordinary case.

Here’s a summary of what happened. For readers unfamiliar with the issues in this case, this oral argument preview by Jeremy Gordon, posted on Thursday, gives an overview and summarizes the briefs as well, along with some of the cases mentioned below. The bottom line is that the argument offered no indication that D.C. Circuit judges believe there is a serious question here under binding case law at both the Supreme Court and D.C. Circuit levels. For very much the reasons one of us (Conway) presented in his original rebuttal to Calabresi, the case is a total dud.

Paul Kamenar argues for Andrew Miller—a witness who is appealing a contempt finding for refusing to appear before the special counsel’s grand jury. He begins by stating that Mueller is a principal officer, not an inferior officer, and that therefore Mueller’s appointment is unconstitutional. Mueller’s appointment was unlawful, he says, because there is no explicit statutory authority to appoint him, and also because a special counsel must be appointed by the head of the department, then-Attorney General Sessions. Mueller was appointed by Deputy Attorney General Rod Rosenstein.

In arguing the first point—that Mueller is a principal officer—Kamenar echoes Calabresi: He contends that Mueller exercises substantial executive power, but is not meaningfully supervised by anyone within the executive branch, and Mueller is not subject to removal except for good cause. Not only that, claims Kamenar, Mueller has all of the power not just of a U.S. attorney but of all U.S. attorneys, since he can bring cases in more than one federal judicial district; in Kamenar’s words, Mueller is like a “like a U.S. attorney at large.” This, again, was Calabresi’s point; Calabresi incorrectly assumed that U.S. attorneys, because they were Senate confirmed, were principal officers, even though they report to other officials in the Justice Department.

Judge Sri Srinivasan stops him right there—and observes, seemingly skeptically, that Kamenar is assuming U.S. attorneys are principal officers.

Srinivasan then shifts gears: He asks, in effect, isn’t this case controlled by Morrison v. Olson and In Re: Sealed Case? Kamenar argues that those cases have to be read “in the light of” two intervening cases—Edmond v. United States and Intercollegiate Broadcasting Systems Inc. v. Copyright Royalty Board. Srinivasan asks, what if Sealed Case is controlling? Kamenar contends that a “lack of supervision” of Mueller, and an inability to remove for cause, make Mueller more of a principal officer. Srinivasan asks if Kamenar is referring to the good-cause removal provision in the current Justice Department regulations, to which Kamenar responds affirmatively. And Srinivasan points out that, in Sealed Case, which involved the Lawrence Walsh investigation of the Iran-Contra scandal, there was a good-cause provision in the relevant regulations as well.

Kamenar concedes the point, but then tries to shift to Edmond—pointing out that the official there was removable at will. But Srinivasan won’t let go. Srinivasan points to Morrison: There was a good-cause provision there, wasn’t there—and it was in a statute, wasn’t it? Kamenar says there have been later decisions by the Supreme Court. Srinivasan asks: Are you saying that, if Congress re-enacted the Ethics in Government Act, the statute at issue in Morrison v. Olson, we wouldn’t be bound by the Supreme Court’s decision in Morrison?

It’s a difficult question, Kamenar answers. Kamenar suggests that the court would have to look at subsequent cases, Edmond, and the D.C. Circuit’s later decision in Intercollegiate. Kamenar also tries to distinguish the scope of the investigation in Morrison with the one being conducted by Mueller.

Srinivasan next turns to a different issue: the removal provisions of the regulation under which Mueller serves, which Kamenar contends restrict the executive branch’s ability to fire him. The regulation, however, can be rescinded or amended to eliminate the good-cause limitation, Srinivasan points out. Doesn’t that make it functionally equivalent for constitutional purposes to at-will removal? Kamenar doesn’t answer this question directly, saying that you have to look at it in functional terms, focusing on the real-world effects. It doesn’t make his client’s life under Mueller’s investigative thumb any better if the regulation can theoretically be revised. Besides, it’s not clear that Rosenstein, who is still Mueller’s boss in the fictional world in which this argument is taking place and has the power to remove him, also has the power to revise the regulation, which can only be revised or revoked by the attorney general.

Srinivasan isn’t buying this, either. Mueller was appointed pursuant to an order, he notes. The order incorporates the substantive requirements of the regulation. So can’t Rosenstein just amend the order, even if he can’t amend the regulation itself? Kamenar does not answer this question clearly, but reiterates the importance of real-world impact.

Judge Judith Rogers picks things up here, focusing on the question of how closely supervised Mueller is by the Justice Department. You argue that he’s not meaningfully supervised, she says to Kamenar, but do we have any actual information about the supervision of the special counsel’s office? Kamenar insists there is no supervision. But where do you get that, she asks, very insistently? The deference to the special counsel, he argues, is such that there is no real supervision going on. The regulation only requires that he consult, not that he actually follow instructions.

Rogers pushes, and pushes: The regulation does not prohibit the acting attorney general from asking for more information and giving direct instructions, she notes. If you want to argue that there is no supervision, don’t you have to argue that it would be impermissible for Rosenstein to exercise the sort of substantial supervision you say would be required? Kamenar acknowledges that Rosenstein can, under the regulation, ask for information or make a request, but the rules only require Mueller to consult and thus allow him to do his own thing if he chooses.

All of this apparently goes nowhere with Rogers. Your argument, she summarizes, is that the language allows a freewheeling unsupervised investigation. But what one deputy attorney general might allow, another might not. Kamenar retorts that there is no record evidence that any kind of supervision is going on. The structure, he contends, includes no authority for the exercise of meaningful supervision.

Judge Srinivasan chimes in: He points out that all of this was also true in Sealed Case. He also points out that, in Edmond, there was no supervisory authority to deal with individual decisions.

This brings Kamenar, his time expiring, back to his argument that Edmond, which came later, demands more. It and Intercollegiate Broadcasting, he says, require substantial oversight, the ability to review a decision, and removability at will. Mueller’s service flunks all three tests. If he is to be an inferior officers—and thus constitutional—he has to be appointed by the head of the department. Sessions, he contends, cannot recuse from his obligation to appoint.

Kamenar is done, having apparently made little headway.

James Martin, arguing on behalf of Concord Management—one of the firms indicted by the special counsel in connection with the Russian social media operation—now takes up the even weaker argument that no federal statute authorizes Mueller’s appointment. Concord is an amicus in this case, but the court has ceded Martin some argument time.

Martin contends that no statute authorizes the appointment of the special counsel. He also contends that neither U.S. v. Nixon nor Sealed Case, both of which involved similar structures, matter. In Sealed Case, Martin contends, the court arguably approved the delegation of authority to the special counsel, but it didn’t approve the appointment of the special counsel. Those are different.

Srinivasan doesn’t agree. The structure of the case is similar. And if there’s a defect in the appointment of Mueller, on this ground, why is it lawful to appoint any of hundreds of Justice Department attorneys—including, say, a deputy solicitor general. (Srinivasan used to be deputy solicitor general and this point prompts knowing laughter in the courtroom.) The deputy solicitor general is not a private lawyer, Martin argues.

But the Justice Department hires private lawyers all the time, Rogers interjects, and then they become Justice Department lawyers. Is this argument merely a question of sequencing—that the Justice Department had to hire Mueller before designating him as special counsel? Martin says it’s more than sequencing: There’s no authority for the sequence to start. He and Rogers go back and forth about Sealed Case. She also raises the small matter of Nixon, which proceeded despite the fact that Leon Jaworski had been appointed under very similar authority. The Supreme Court, Martin contends, would not consider itself bound by the passing language in Nixon concerning the authority to appoint a special prosecutor. The issue was not analyzed or considered. It wasn’t part of the jurisdictional question as presented at the time.

In effect, Martin and Kamenar have urged the D.C. Circuit to blow through several binding precedents, including precedents of the Supreme Court.

Michael Dreeben takes the podium for Special Counsel Mueller. He gives what is mostly a sequence of monologues, interspersed with a few questions. In our experience, the vast majority of the time in appellate courts, the side that gets the fewest questions wins. And from the paucity of questioning and the tone, it certainly seems as though the judges are already with Dreeben and are just clarifying a few details in their minds.

There are three issues before the court, Dreeben opens. Is Mueller an inferior officer or a principal officer under the Appointments Clause? Did Rod Rosenstein have authority to make the appointment as acting attorney general? And was there sufficient statutory authority to support the appointment? The first two issues are controlled by precedent: Morrison and Sealed Case. As to the latter, in both Nixon and Sealed Case, the court acted as though the statutes provide the necessary authority.

Srinivasan notes that Sealed Case turned on the authority of the attorney general to rescind the regulation. In this case, the regulation is made applicable through the order appointing Mueller. So is the real issue here the order, rather than the regulation?

Dreeben agrees that Rosenstein could effectively amend the regulation, at least as applied to Mueller, by amending the order. But he also says that Rosenstein could, in fact, amend the regulation itself. After all, Rosenstein has the powers of the attorney general for purposes of the Russia investigation, but he is also the deputy attorney general and thus can amend the general regulation in his capacity as deputy attorney general unless specifically prevented from doing so by the attorney general. So he can rescind good-cause removal either through the order or through the regulation itself.

The controlling holding in Sealed Case, he argues, is that as long as the attorney general can recall power granted to an officer, the holder of that power remains an inferior officer.

Srinivasan then turns to the degree to which Mueller is meaningfully supervised. Do you regard the attorney general’s power to object to a move by the special counsel as the power to preclude it? In a moment in which the specter of Matthew Whitaker suddenly appears in the room, Dreeben responds unequivocally: We do, he says.

There are regular reporting requirements to the acting attorney general, Dreeben says. There are also urgent reporting requirements. There is reporting on request. The office is ultimately accountable to the Justice Department. It is independent from day-to-day, but the acting attorney general can ask for explanation of any step. When that occurs, he can conclude that the step is so inappropriate under department policy and procedure that it should not be taken. The acting attorney general is obliged to give great weight to the views of the special counsel. But the idea is that the special counsel is to have day-to-day independence in doing the things the Justice Department does, but needs to stay within the range of things that federal prosecutors typically do and that policy allows. So yes, the attorney general can prevent things, not merely get reporting on them. The office of special counsel, Dreeben says, is a subordinate office within the Justice Department.

What’s more, the special counsel’s jurisdiction is defined by the acting attorney general. Rosenstein has testified that he is aware of the activities of the office and supervises it. So jurisdictional limitations are real. The office is bound by department policies and procedures. When you put it all together, Dreeben says, the degree of deference is not beyond what the court in Edmond said is reasonable. It is much stricter than what was tolerated in Morrison or Sealed Case. Whether considered under precedent or under first principles, there simply isn’t a good argument that the special counsel is a principal officer.

Dreeben wraps up with the statutory question. He notes that both Nixon and Sealed Case involved similar appointments and that the courts in question had no problem with them. He argues that Srinivasan’s example of the deputy solicitor general is instructive. This is the authority under which the Justice Department has appointed regular department lawyers for decades. He then walks through the history of the statutes. He notes that Congress regularly appropriates money on the theory that it can be spent on such thing as special counsels. There’s a lot of history and activity and congressional endorsement of the idea that the statutory authority for hiring special counsels is there, he contends. All leads of this history, practice, and congressional action leads to the same place.

He offers to address one final issue, but Judge Henderson has had enough. “Then I’ll rest on our briefs,” he says.

Kamenar and Martin each get a couple of minutes to rebut. Kamenar stresses once again that Edmond demands substantial supervision and oversight. The special counsel receives no day-to-day supervision, no regular consulting, no control. There needs to be specific authority for the appointment, he claims. You have that for an assistant U.S. attorney, why not for Mueller? And if he is to be an inferior officer, he has to be appointed by the head of the department: Sessions.

Martin asks the court not to make Nixon and Sealed Case into more than they are on statutory authority. The appointment authority question wasn’t argued in either case, he reiterates, wasn’t decided, and wasn’t essential to what was decided.

Srinivasan reads a passage from Nixon citing the relevant statutes as authority for the appointment of Jaworski: Should we quote that passage and then write, “We disagree,” he asks? The passage, Martin insists, is in passing and without any analysis. The statutes’ texts do not support appointment authority. Marin offers to explain the history, but Henderson cuts him off.

“Alright, please, let me stop you there. We’ve got enough of history.”

After the argument, NPR reporter Carrie Johnson tweeted:

Here’s video of Kamenar’s statement:

Yes, it can be rough when courts get hung up on precedent. There is no appetite on the D.C. Circuit to spit in the faces of these precedents. Don’t look for any justices to be itching to revisit them either.

Anushka Limaye contributed additional reporting to this piece.



George Conway is a lawyer practicing in New York.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare