The Terrible Arguments Against the Constitutionality of the Mueller Investigation

George Conway
Monday, June 11, 2018, 5:54 PM

There is no serious argument that Robert Mueller’s appointment violates the Constitution.

U.S. Supreme Court (Wikimedia/Daderot)

Published by The Lawfare Institute
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In an early-morning tweet last week, President Trump took aim once again at Special Counsel Robert Mueller, but with a brand new argument: “The appointment of the Special Councel,” the president typed, “is totally UNCONSTITUTIONAL!”

The president swiftly fixed the spelling of Mueller’s title, but he stuck with his constitutional claim, in a reissued tweet:

He didn’t explain what his argument was, or where he got it, but a good guess is that it came from some recent writings by a well-respected conservative legal scholar and co-founder of the Federalist Society, professor Steven Calabresi. Unfortunately for the president, these writings are no more correct than the spelling in his original tweet. And in light of the president’s apparent embrace of Calabresi’s conclusions, it is well worth taking a close look at Calabresi’s argument in support of those conclusions.

Calabresi has made his argument in a Wall Street Journal op-ed, on a Federalist Society teleconference and in a more detailed paper he styles as a “Legal Opinion.” He contends that all of Special Counsel Mueller’s work is unconstitutionally “null and void” because, in Calabresi’s view, Mueller’s appointment violates the Appointments Clause of the Constitution, Article II, Section 2, Clause 2.

The Appointments Clause distinguishes between two classes of executive-branch “officers”—principal officers and inferior officers—and specifies how each may be appointed. As a general rule, the clause says that “Officers of the United States”—principal officers—must be nominated by the president and appointed “with the Advice and Consent of the Senate.” At the same time, however, the Appointments Clause allows for a more convenient selection method for “inferior officers”: It goes on to add, “but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of law, or in the Heads of Departments.”

Calabresi argues that Special Counsel Mueller is acting as a principal officer and that, accordingly, Mueller’s appointment violates the Constitution because Mueller was appointed by the acting attorney general, and not by the president with the advice and consent of the Senate. In support of this broad point, Calabresi makes first a specific claim and then a more general one.

His specific claim, made at the outset of his “Legal Opinion,” is that “Robert Mueller has behaved like the 96 [sic] U.S. Attorneys who are principal officers of the United States and who must be nominated by the President and confirmed by the Senate.” His more general, and overarching, claim is that under Supreme Court case law applying the Appointments Clause, Special Counsel Mueller is a principal officer because “because Mueller does not have a boss who is supervising and directing what he is doing.”

Calabresi’s first point—the illustrative comparison between Mueller and the U.S. attorneys—begins with a badly mistaken premise. Without citing anything at all, he repeatedly assumes, in both his op-ed and his “Legal Opinion” paper, that “Congress has specified that the 96 [sic] U.S. Attorneys are all principal officers who must be nominated by the President and confirmed by the Senate.”  (Emphasis mine.)

This assumption is just wrong—uncomplicatedly, flatly wrong. It is true that, typically, the 93 (not 96) U.S. attorneys are presidentially nominated and Senate-confirmed. But Congress has established an alternative method of appointment. Title 28 U.S.C. § 546 provides that, until the Senate confirms a presidential nominee, U.S. attorney vacancies can be filled for up to 120 days by an appointment made by the attorney general and then indefinitely by local district courts. Such non-presidential, non-Senate-confirmed appointees are, as one court of appeals has put it, “fully-empowered United States Attorneys, … not subordinates assuming the role of ‘Acting’ United States Attorney.” And such fully-empowered, non-presidentially-appointed U.S. attorneys are not all that uncommon. Today, the sitting United States attorneys in two of the most important judicial districts in the country—the Southern and Eastern Districts of New York—were appointed by the judges of those districts under Section 546(d).

And so “the Congress …  by … vest[ing] the Appointment” of U.S. attorneys “in the Courts of law” and “in the Heads of Departments,” obviously recognized that U.S. attorneys are “inferior officers.” But Congress is not the only branch of the government to have reached this conclusion. In 1978, the question was expressly put to the Justice Department’s Office of Legal Counsel. OLC’s conclusion: U.S. attorneys are inferior officers, because the law “authorizes the Attorney General to direct all U.S. Attorneys in the discharge of their duties.”

Not to be left out, members of the third branch—which has made a lot of these appointments—have also agreed. The Supreme Court has never squarely addressed the point under the Appointments Clause, but in discussing presidential removal power in Myers v. United States, the Supreme Court specifically referred to “a United States attorney” as an example of “an inferior officer.” More recently, in Morrison v. Olson, the high court approvingly noted how “Congress itself has vested the power to make [U.S. attorney] interim appointments in the district courts” under 28 U.S.C. § 546(d), and observed that “[l]ower courts have also upheld [those] interim judicial appointments of United States Attorneys” under the Appointments Clause. These lower courts include two federal courts of appeals, one of which rejected an Appointments Clause challenge to a U.S. attorney who had served under a judicial appointment for more than six years.

Accordingly, there is no serious dispute: U.S. attorneys are inferior officers. So if what Robert Mueller is really doing is, as Calabresi suggests, “behav[ing] like the [93] U.S. Attorneys,” then Calabresi’s argument immediately collapses on itself. Mueller is an inferior officer, just as U.S. attorneys are.

But it is even worse than that for Calabresi’s thesis—Mueller’s Office of Special Counsel appears, on its face, to be inferior in size and authority than many, if not most, U.S. attorney’s offices throughout the nation.

As the president is wont to point out these days, Mueller’s office consists of few more than a dozen lawyers—roughly the size of the U.S. Attorney’s Office for the District of Wyoming—and the scope of his work is quite narrow. Contrast some of the larger U.S. attorney’s offices—such as that of the court-appointed U.S. attorney for the Southern District of New York. That office comprises roughly 220 lawyers, and the scope of its work is breathtaking—covering, just for starters, “domestic and international terrorism, white collar crime, securities and commodities fraud, public corruption, cybercrime, narcotics and arms trafficking, gang violence, organized crime, and civil rights violations.” If the U.S. attorney who runs that office is an “inferior officer,” then so too is Robert Mueller.

So much for Calabresi’s comparison of the special counsel to U.S. attorneys—but his more general, overarching contention under the Appointments Clause fares just as poorly. He argues that under the Supreme Court’s Appointments Clause precedents, Special Counsel Mueller must be considered a principal officer “because Mueller does not have a boss who is supervising and directing what he is doing.” In making this argument, he generally states the law correctly—but engages in what can only be described as a highly tendentious description of the special counsel’s mandate and work.

Calabresi rightly observes that the best explanation of the Appointment Clause’s meaning may be found in Justice Antonin Scalia’s opinion for the Supreme Court in Edmond v. United States. There, Justice Scalia expressed an understanding of “inferior officers” that dovetails with the 1978 OLC opinion that found U.S. attorneys to be inferior officers:

Generally speaking, the term “inferior officer” connotes a relationship with some higher ranking officer or officers below the President: Whether one is an “inferior” officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase “lesser officer.” Rather, in the context of a Clause designed to preserve political accountability relative to important Governmental assignments, we think it evident that “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.

From this legal jumping-off point, Calabresi—citing absolutely nothing—goes on to conclude that no principal officer at the Justice Department is “‘supervising and directing’ the work of Robert Mueller.” Calabresi paints Mueller as a rogue prosecutor run amok: He bizarrely accuses Mueller of, among other things, orchestrating “controlled leaks of information to the press designed to embarrass the President and hinder him in the performance of his duties,” “wiretapp[ing] telephone calls covered by Attorney-client [sic] privilege between President Trump and his longtime personal lawyer Michael Cohen,” and “illegally obtain[ing] a phone log of Cohen’s phone calls.” In support of all these serious charges and other censorious claims, Calabresi cites nothing.

Against this unsupported rhetoric, moreover, there is an actual public record—an extensive one—to cite and review. A record consisting of, among other things, the regulations that govern Mueller's activities; the order under which he was appointed; the correspondence and sworn testimony of the principal officer, Acting Attorney General Rod Rosenstein, who appointed Mueller; as well as an actual court decision discussing the special counsel’s authority. All these materials make clear that Special Counsel Mueller is an inferior officer, appropriately supervised and directed by Rosenstein. (To be clear, Rosenstein did not appoint Mueller directly pursuant to the regulations but rather incorporated the regulations by reference in his appointment letter, which he issued under his statutory authority under 28 U.S.C. §§509, 510, and 515.)

First, the regulations: They require the acting attorney general to provide “a specific factual statement of the matter to be investigated” and to determine “whether to include … additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.” They also provide that the acting attorney general “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step” and that he may veto that action if he concludes that it is “inappropriate or unwarranted under established Departmental practices.” And the regulations mandate that Mueller, at the conclusion of his investigation, must provide Acting Attorney General Rosenstein with a report “explaining the prosecution or declination decisions” reached by his office.

If that were not enough, when the Department of Justice promulgated these regulations, it explained that, in any matter handled by a special counsel, “it is intended that ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General (or the Acting Attorney General if the Attorney General is personally recused in the matter),” and thus, the regulations “explicitly acknowledge the possibility of review of specific decisions reached by the Special Counsel.” In short, the special counsel regulations make crystal clear that Mueller is “directed and supervised” by Rosenstein—that the special counsel does, in fact, have a boss.

Consider next the order appointing Mueller, Rosenstein’s correspondence to Mueller, and Rosenstein’s testimony: The publicly issued appointment order, as well as an internal Justice Department memorandum from Rosenstein to Mueller that has been publicly filed in court in redacted form, make clear that the acting attorney general has complied with his obligation to provide the special counsel “a specific factual statement of the matter to be investigated.” Beyond this, the acting attorney general has given congressional testimony about his direction and supervision of the special counsel. In that testimony, Rosenstein swore, among other things, that:

  • “I know what [Mueller’s] doing. I’m properly exercising my oversight responsibilities, and so I can assure you that the special counsel is conducting himself consistently with our understanding about the scope of his investigation.”
  • “[T]he consultation” with Mueller “is much more detailed than” about simply whether the investigation should be expanded beyond its original scope. “He consults with me about their investigation, both within and without the scope. So I know what they’re authorized to do.”
  • Rosenstein and Mueller have “had ongoing discussion about exactly what is within the scope of his investigation. And, to the extent there was any ambiguity about it, he’s received my permission to include those matters within his investigation.”
  • Mueller “understands that [he] is a special counsel … not an independent counsel.”
  • “I’m accountable for what they’re doing, and I need to know what they’re doing.”
  • “[W]e know what’s under investigation.”
  • “[W]hatever it may be, I’m responsible for and I know what he’s investigating.”
  • “As I said, Congressman, I know what he’s doing. If I felt he was doing something inappropriate, I would take action.”
  • “I’m not aware of any impropriety. We do have regulations; the special counsel is subject to all the department’s rules and subject to oversight by the department, including the inspector general. I’m not aware of any violation of those rules by the special counsel employees.”

Rosenstein’s testimony thus confirms that Special Counsel Mueller does have an active principal-officer boss—indeed, it suggests that Mueller is probably being supervised and directed more closely than any of the 93 U.S attorneys from Maryland to Guam.

Beyond this, there is a recent court decision that actually discusses the special counsel’s authority—and it likewise refutes Calabresi’s claim that Mueller has somehow run amok. In United States v. Manafort, former Trump campaign manager Paul Manafort moved to dismiss the indictment against him, on the ground that the special counsel had exceeded the scope of his appointment order. The United States District Court for the District of Columbia squarely rejected this assertion: Contrary to Calabresi’s claim that “Mueller has without any real supervision by Deputy Attorney General Rod Rosenstein … indicted Paul Manafort … on two counts of misconduct having nothing to do with collusion with Russia,” the district judge expressly found that, given Manafort’s extensive financial ties to Russian-backed Ukrainian politicians, Mueller’s investigation and prosecution of Manafort was “an appropriate exercise of the Special Counsel’s authority” under the terms of the appointment order—and that, indeed, “the Special Counsel would have been remiss” not to investigate Manafort.

So not only does Mueller have a boss, and not only is the boss keeping tabs on Mueller, but, according to this judicial decision, Mueller is also faithfully following his boss’s orders.

That disposes of Calabresi’s Appointment Clause contentions, but Calabresi makes one additional constitutional point—and it’s a very, very, very odd one. It is based upon Morrison v. Olson, the 7-1 Supreme Court decision in 1988 that upheld the markedly different, long-expired independent-counsel provisions of the Ethics in Government Act of 1978.

To conservative lawyers of my generation, Morrison is, to say the least, a deeply unsettling decision, because it upheld the creation of a truly “independent” prosecutor—an official who was exercising purely executive power, the power to prosecute, yet was doing so not only outside the Justice Department but, effectively, outside the entire executive branch. It provoked one of Justice Scalia’s greatest dissents—to my mind, one of the greatest dissents of all time.

The majority in Morrison upheld the independent counsel mechanism against a variety of constitutional attacks—including an Appointments Clause claim and a separation-of-powers claim. It rejected the Appointments Clause claim because four factual circumstances were present: the independent counsel was ultimately removable “for cause” by the attorney general, though unsupervised by him; the independent counsel had “limited duties,” involving merely investigation and prosecution; the counsel was “limited in jurisdiction”; and she was “limited in tenure.” As for the overall separation-of-powers claim, the court held, in the last major section of its opinion, that the independent counsel scheme did not “unduly interfer[e] with the role of the Executive Branch.”

For his part, Justice Scalia dissented vigorously and brilliantly from both holdings. As for the Appointments Clause, presaging his later opinion for the court in Edmond, he concluded that the independent counsel was a principal officer, and not an inferior officer, because she was subordinate to no one in the executive branch. As for the separation-of-powers holding in Morrison, Justice Scalia decried the “ad hoc, standardless” “balancing test” applied by the court. “[H]ow much removal of Presidential power is too much?” he plaintively asked. In the stirring conclusion to his dissent, Justice Scalia declared his preference to “rely upon the judgment” of the people who “constructed our system … and approved it,” when they declared “quite plainly,” in Article II, § 1 of the Constitution, “that ‘[t]he executive Power shall be vested in a President of the United States.”

I have already said enough about the Appointments Clause: The special counsel passes muster even under Justice Scalia’s test, which under Edmond is now the law. But on the basis of Morrison, Calabresi launches one further attack, albeit a half-hearted one, on the special counsel: He actually suggests that, in contrast to the independent counsel scheme upheld in Morrison, “[t]he Mueller appointment also violates the final part of [the] Morrison opinion”—the separation-of-powers holding—“because it interferes ‘too much’ with the President’s executive power.”

This is almost too much to bear, because what happened in Morrison was that Congress passed a statute that took prosecutorial power—purely executive poweraway from, and out of, the executive branch. Cue Justice Scalia’s dissent: “the statute before us deprives the President of exclusive control over that quintessentially executive activity” and “[t]he Court does not, and could not possibly, assert that it does not.” “[T]he independent counsel exercises executive power free from the President’s control.” “[T]he independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).” Despite all that, the majority in Morrison did not think the old independent counsel law stripped “too much” executive power away from the executive.

Contrast that with the situation here—where not even Justice Scalia would think any power has been removed from the executive. Here there was no statute imposed by Congress, just a regulation—a regulation promulgated by and within the executive branch. Specifically, a Justice Department regulation promulgated by the attorney general, an officer fireable at will by the president. And what does this regulation do? It simply divides work among lawyers within the Department of Justice—within the executive branch. It surely doesn’t remove any executive power from the executive branch.

And not only that, the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them. Indeed, according to Attorney General Janet Reno when she issued the special counsel regulations in 1999, those regulations aren’t even subject to notice-and-comment rulemaking, because they relate to “matters of agency management or personnel,” and “agency organization, procedure, or practice”—which suggests they could be dispensed with equally unceremoniously as well. In short, 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. No matter how you cut it, to borrow Justice Scalia’s words, there has been no “removal of Presidential power”—none—let alone too much.

In short, there is no serious argument that Special Counsel Mueller’s appointment violates the Appointments Clause specifically or the separation of powers generally.

*     *     *

A final observation: It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.

George Conway is a lawyer practicing in New York.

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