The Volokh Conspiracy
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Politico reports on the judicial rejection of some of Paul Manafort's attacks on the Mueller investigation.
In dicta, U.S. District Court Judge T.S. Ellis III's June 26 opinion comments on whether Robert Mueller's appointment violates the Appointments Clause of the Constitution:
Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General. Congress may vest appointment of inferior officers in the "heads of departments" and so the congressionally authorized appointment of the Special Counsel by the Deputy Attorney General, acting as the Attorney General, is valid pursuant to the Appointments Clause. [citations omitted]
Judge Ellis noted that Manafort's attorney did not raise Calabresi's challenge:
"the parties do not dispute that the Special Counsel's appointment was consistent with the Appointments Clause of the Constitution, which empowers Congress to vest appointment of 'inferior officers,' in the 'president alone' or in 'heads of departments.'"
Yet Judge Ellis also held that the DOJ regulations governing the Special Counsel were authorized by statute:
The statutory authority under which current Special Counsel are appointed by the Attorney General pre-dates the 1978 Act. The statutory provisions applicable to the Special Counsel were codified in 1966 at Sections 501 through 530D of Title 28 of the United States Code. See An Act of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 612 (codified at 28 U.S.C. §§ 501-530D). As relevant here, these provisions vest all functions of the DOJ, including conducting criminal litigation on behalf of the United States, in the Attorney General, see 28 U.S.C. § 509, and authorize the Attorney General to delegate these functions to "any other officer, employee, or agency of the Department of Justice," see id. § 510. Although the Attorney General can delegate these functions to an existing officer of the DOJ, the Attorney General may also retain outside attorneys and commission these attorneys as special assistants to the Attorney General or special attorneys. See id. § 515. Once a special attorney is retained, that assistant "may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct." Id. § 515(a).
Steve Calabresi essentially disagrees.
In an op-ed published earlier (June 19) in The Hill, Calabresi argues that, even if Mueller is held not to be a principal officer, his appointment as an inferior officer is not authorized by statute—Mueller being different from most special or independent counsels who were either appointed pursuant to independent counsel statutes no longer in force or were already confirmed US Attorneys:
The Appointments Clause of Article II provides that:
***"The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law; 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."***
Robert Mueller is not an inferior officer of the United States because Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrong-doing by the president of the United States or other high level government officials.
Attorney General Janet Reno adopted a Department of Justice regulation to this effect in 1999, after the Ethics in Government Act sunsetted out of existence, which purported to create special counsels to investigate high-level or presidential wrongdoing, but she had no statutory authority to appoint Special Counsels to be inferior officers.Reno's regulation, "Grounds for appointing a Special Counsel", was blatantly unconstitutional.
Some might defend Reno's regulation by pointing to 28 U.S.C. Section 515(a), which provides that:
***"The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings … whether or not he is a resident of the district in which the proceeding is brought."***
This provision does not, however, authorize the creation of new inferior officer special counsels like Robert Mueller. But, it does allow the attorney general to appoint, for example, Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, appointed under law, to take on the germane duty of being a special counsel. As a special counsel he investigated the Valerie Plame affair, and he prosecuted and convicted Scooter Libby — a criminal matter that was outside the jurisdiction of the Northern District of Illinois.
Another example of this occurred in 2012 when former Maryland U.S. Attorney Rod Rosenstein was appointed by then-Attorney General Eric Holder to investigate leaks in the District of Columbia. Most recently, Attorney General Jeff Session has asked Utah U.S. Attorney John Huber to investigate alleged politicization of the FBI. All of these U.S. attorneys were already principal officers of the United States "appointed under law" who were tasked with bringing legal proceedings outside their own districts.
28 U.S.C. 543, could also be argued to be relevant because it says that:
***"The Attorney General may appoint attorneys to assist United States Attorneys when the public interest so requires, including the appointment of qualified tribal prosecutors and other qualified attorneys to assist in prosecuting Federal offenses in Indian country."***
The short answer to this as a statutory basis for constitutionalizing Mueller's appointment as a special counsel is that Mueller was not actually appointed to assist U.S. attorneys or to prosecute Indians. There is, therefore, no statutory authority for the Mueller appointment.
According to 28 U.S.C. 519, the attorney general has the power to "supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543." But this reference creates no new inferior officers just as 28 U.S.C. 543 creates no new inferior officers. Both clauses refer to attorneys already appointed by law who are assisting U.S. attorneys, which is not what Robert Mueller is doing.
BTW, Judge Ellis concludes by expressing discomfort with the use of a Special Counsel (endorsing instead an investigative nonpartisan commission):
The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.
DISCLOSURE: In the fall of 2016, I made a small donation to the Hillary Clinton campaign.