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On Thursday, Nov. 8, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in In re Grand Jury Investigation, a case that could decide the constitutional validity of Robert Mueller’s appointment as special counsel. Judges Karen Henderson, Judith Rogers and Sri Srinivasan will review Roger Stone associate Andrew Miller’s appeal of an order holding him in contempt of court for his refusal to comply with subpoenas from Special Counsel Robert Mueller.
Factual and Procedural Background
In May 2018, Mueller’s office served Miller with subpoenas to appear before the grand jury and produce documents. Miller failed to appear before the grand jury. A month later, in June, the special counsel’s office issued a second set of subpoenas requiring document production and a grand jury appearance. After Miller objected to the request for documents and a hearing by the district court, the parties reached an agreement on the scope of the documents requested and the court ordered Miller to produce the documents and appear before the grand jury. Miller provided the documents as ordered, but on June 28, the day before he was scheduled to appear before the grand jury, he filed a motion in the U.S. District Court for the District of Columbia to quash the subpoena, arguing that Mueller had been unconstitutionally appointed.
After expedited briefing, in late July Judge Beryl A. Howell denied Miller’s motion and ordered him to appear before a grand jury in August. Miller then moved to be held in civil contempt, but requested that the contempt order be stayed so he could appeal it. The court held Miller in contempt and stayed the order while Miller appealed the case to the D.C. Circuit.
Miller’s motion to quash the subpoena adopted by reference a separate motion in a different case, filed by Concord Management and Consulting LLC—an entity named as a defendant in the special counsel’s indictment of the Internet Research Agency—challenging that indictment on similar grounds as Millert. Judge Dabney Friedrich denied Concord’s motion, prompting Concord to move to intervene at the appeals level. The D.C. Circuit likewise denied that motion, but granted Concord permission to participate in the case as amicus curiae. In its amicus brief, Concord argues that Congress has never by law vested the attorney general with the power to appoint the special counsel as an inferior officer as required by the Appointments Clause, and that no controlling court decision holds as much.
Miller’s appeal asks the D.C. Circuit to consider three issues:
- Whether Congress, under the Appointments Clause of Article II, § 2, of the U.S. Constitution, “established by law” the appointment of a private attorney to serve as a special counsel as an “Officer of the United States.”
- Whether Special Counsel Robert S. Mueller III (the “Special Counsel”) was unconstitutionally appointed because he is a “principal officer” under the Appointments Clause of Article II, and thus was required to be—but was not— appointed by the President with the Advice and Consent of the Senate.
- Whether Congress “by Law vest[ed] the Appointment” of the Special Counsel as an “inferior Officer ” in “Head of the [Justice] Department[ ],” and thus, under the “Excepting Clause,” was unconstitutionally appointed because he was required to be—but was not—appointed by Attorney General Jeff Sessions rather than by Deputy Attorney General Rod Rosenstein.
Miller argues that he does not have to comply with the subpoena because the special counsel’s appointment is unconstitutional under the Appointments Clause, which distinguishes between “principal officers”—which must be nominated by the president and confirmed by the Senate—and inferior officers, who may be appointed unilaterally by the president, the courts, or “Heads of Departments.” He makes three claims: First, the Appointments Clause requires Congress to clearly vest power to appoint inferior officers in the heads of departments by law, and no statute provides authority to appoint the special counsel. Second, the special counsel is actually a “principal officer” whose appointment requires nomination by the president and confirmation by the Senate. Third, even if the court finds that the special counsel is an inferior officer, Mueller’s appointment is unconstitutional because he was not appointed by the head of the Justice Department—that is, Sessions.
Miller devotes the bulk of his brief to his contention that the special counsel’s sweeping powers and the absence of a statute conferring authority to appoint a counsel qualify Mueller as a principal officer whose appointment requires presidential nomination and confirmation by the Senate. Using the tests for distinguishing between an inferior and principal officer set forth in Morrison v. Olson and Edmond v. United States, Miller argues that the broad authority of the special counsel’s office, coupled with a lack of Justice Department oversight, more readily characterizes Mueller as a principal rather than inferior officer. Specifically, Miller points to the for-cause removal requirement of the special counsel regulation and the attorney general’s alleged powerlessness to compel the special counsel to follow orders. The special counsel, Miller argues, is in fact more powerful than U.S. attorneys, who are nominated by the president and Senate-confirmed.
Central to Miller’s argument as well are the unique circumstances of Mueller’s appointment. Even if the court finds that the special counsel is an inferior officer and that Congress vested power in the attorney general to appoint a special counsel, Miller asserts, Rosenstein still was not empowered to do so. Miller claims that Sessions’ recusal from all matters pertaining to the 2016 presidential election does not constitute an “absence” or “disability”—the two statutory exceptions that would enable the deputy attorney general to assume the attorney general’s powers. Rather, Miller argues, absence or disability requires the attorney general’s complete rather than a partial inability to perform the functions of the office, which was not the case here. Furthermore, Sessions cannot and did not delegate the authority to appoint a special counsel to his deputy.
The Government’s Response
The government’s brief counters, first, that Supreme Court precedent establishes that the special counsel is an “inferior officer”; second, that Congress by law vested the attorney general with statutory authority to appoint special counsels; and third, that the attorney general’s recusal constitutes a disability that empowered the deputy attorney general to assume the functions of the attorney general and act as head of the Justice Department in appointing the special counsel.
First, the government argues that factors from Edmond that the court used to assess whether an officer is “principal” or “inferior”—the degree of oversight over the officer, the removability of the officer, and the officer’s decision-making power—support a finding that the special counsel is an inferior officer. The special counsel reports to and is supervised by the attorney general; in fact, the special counsel is actually subject to more oversight than the independent counsel position at issue in Morrison. And although the government acknowledges that the attorney general gives deference to decisions by the special counsel, it argues that inferior-officer status is not inconsistent with a deferential standard of review. The for-cause removal provisions in the special counsel regulations provide ample means of control, the government argues, noting that the attorney general could reinstate a no-cause removal standard by revoking the regulation.
Next, the government cites United States v. Nixon and In re Sealed Case to support its contention that the attorney general has statutory authority to appoint the special counsel. In those cases, it argues, the Supreme Court held that 28 U.S.C. §§ 515 and 533 authorized the appointment of a special prosecutor “comparable to the special counsel.” Section 533 authorizes the attorney general to “appoint officials ... to detect and prosecute crimes against the United States.” Section 515, meanwhile, states that “[e]ach Attorney specially retained under the 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…” History shows that attorneys general have long used these statutes to appoint “special attorneys” similar to the special counsel, and have had the consistent support of all three branches of government when doing so.
Turning to the validity of the deputy attorney general’s exercise of the appointment power, the government asserts that the attorney general’s “legally mandated” recusal from all matters pertaining to the Russia investigation constitutes a “disability” under 28 U.S.C. § 508, vesting the deputy attorney general with appointment power as acting attorney general. If the court adopts Miller’s argument that recusal does not constitute disability, the government suggests, this would strip the Department of Justice of its power to act on any matters for which the attorney general is required to recuse himself—an illogical result that, it asserts, Congress could not have intended.
Miller’s Reply Brief
In his reply, Miller refocuses his argument onto his first contention in his opening brief: “The principal question before this Court is whether there is any statute that clearly conveys power to the Attorney General to appoint a private attorney as Special Counsel at the level of an inferior officer.” He concludes that there is not on the basis of the plain text of §§ 515 and 533, dismissing the government’s citation to historic practice as a contorted “redrafting” of the statutes.
Next, Miller challenges the government’s conclusion that Nixon and In re Sealed Case reflect controlling precedent on the statutory authority question. Those cases, he says, arose on different facts and involved different legal arguments than those at bar. In Nixon, Miller suggests, the court referenced §§ 515 and 533 in passing as mere dicta. And in In re Sealed Case, Miller argues that the court itself emphasized the narrowness of its decision and asserts that that case turned on a key factual difference from the present case: That the appointment at issue was that of a Justice Department employee, and not a private lawyer outside the department, as Mueller was when he was appointed.
Miller concludes his reply by bolstering his final two contentions. He reinforces his argument that the special counsel possesses “extraordinary power” without being subject to substantial oversight and rejects the government’s proposition that a single-issue recusal constitutes the type of disability that would transfer the attorney general’s power to appoint inferior officers to the deputy attorney general.