The Constitutional Challenge To Robert Mueller's Appointment
One calendar week from today, on Thursday, Nov eight at 1:00, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Henderson, Rogers in addition to Srinivasan) volition take heed declaration inwards Miller v. United States, No. 18-3052, a illustration challenging the constitutionality of Robert Mueller’s engagement to serve equally “Special Counsel” for the Russian Federation investigation.
The appellant is Andrew Miller, a potential grand jury witness who refused to comply with a duet of subpoenas requiring him to render testimony in addition to documents to the grand jury. Miller argued, alongside other things, that the subpoenas should endure quashed because Mueller was non lawfully appointed. Miller continued to turn down to comply with the subpoenas fifty-fifty after Chief Judge Howell denied his motion to quash them, in addition to and so the Judge held him inwards contempt. Miller has appealed from that contempt order.
He makes iii dissever arguments that Rosenstein’s engagement of Mueller purportedly violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which provides that:
Second, Miller argues that fifty-fifty if Special Counsel Mueller is an “inferior” officer, his engagement was nevertheless unconstitutional because Congress has non “by law” vested the Attorney General with the authorization to appoint such a Special Counsel (in effect, a inquiry of statutory interpretation, virtually whether the engagement was ultra vires).
Third, Miller argues that fifty-fifty if Special Counsel Mueller is an “inferior” officer, in addition to fifty-fifty if Congress authorized the Attorney General to appoint him, the Deputy Attorney General, Rod Rosenstein, may non brand the engagement because he is non the “Head” of the Department of Justice, fifty-fifty where, equally here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation in addition to is thus unable to practice those functions.
If the courtroom of appeals were to concur that the Mueller engagement was unconstitutional, that would, of course, endure a real big deal. In a serial of posts over at Just Security, however, I do something of a "deep dive" into Appointments Clause arcana inwards guild to explicate why that’s a real unlikely outcome. I also identify 2 or iii questions the courtroom of appeals ask not, in addition to in all likelihood should not, endeavor to response definitively that mightiness possess got greater implications for developments apart from the illustration on appeal—including, importantly, the nature in addition to compass of the Acting Attorney General’s authorization to take away Mueller.
The first post offers a full general overview of the case, with links to the lower courtroom opinions in addition to the briefs on appeal.
In my second post, I explicate why there’s genuinely a serious question, non briefed yesteryear the parties, virtually whether the Appointments Clause applies to Mueller at all (a inquiry the courtroom of appeals tin probable avoid yesteryear only assuming, without deciding, that Mueller is a constitutional “officer”).
The third post is maybe the most important—not for purposes of resolving the Miller appeal itself, but to a greater extent than broadly for what it says virtually the officers throughout the government, including Mueller, whose independence is secured inwards component subdivision yesteryear tenure protections that foreclose “at will” removal. In that post, I accept number with the tentative proposition inwards Chief Judge Howell’s opinion that it mightiness endure proper—or necessary to avoid a hard constitutional question—for the courtroom to construe expansively the Acting Attorney General’s authorization to take away Mueller nether the DOJ Special Counsel regulations.
My fourth post addresses a handful of issues raised yesteryear Judge Friedrich inwards her opinion in a related illustration raising similar Appointments Clause challenges to Mueller, including: whether the Supreme Court’s conclusion inwards Morrison v. Olson (1988) is soundless "good law"; whether a bipartisan consensus has emerged that Morrison was wrongly decided; whether the Special Counsel is an inferior officeholder whose engagement was constitutional fifty-fifty nether the analysis of the Court’s after conclusion inwards Edmond v. United States (1999); in addition to whether the prospect of a possible rescission or amendment of the Special Counsel regulations affords Rosenstein greater command over the behavior of the Mueller investigation, in addition to whether that inquiry has whatsoever bearing on the Appointments Clause questions inwards the Miller case.
In my final post, I briefly hash out what I’ve labeled inwards a higher house equally the minute in addition to 3rd of Miller’s iii Appointments Clause arguments, both of which are predicated on the supposition that the Appointments Clause applies in addition to that Mueller is an inferior officer.
The appellant is Andrew Miller, a potential grand jury witness who refused to comply with a duet of subpoenas requiring him to render testimony in addition to documents to the grand jury. Miller argued, alongside other things, that the subpoenas should endure quashed because Mueller was non lawfully appointed. Miller continued to turn down to comply with the subpoenas fifty-fifty after Chief Judge Howell denied his motion to quash them, in addition to and so the Judge held him inwards contempt. Miller has appealed from that contempt order.
He makes iii dissever arguments that Rosenstein’s engagement of Mueller purportedly violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which provides that:
[The President] shall nominate, in addition to yesteryear in addition to with the Advice in addition to Consent of the Senate, shall appoint Ambassadors, other world Ministers in addition to Consuls, Judges of the supreme Court, in addition to all other Officers of the United States, whose Appointments are non herein otherwise provided for, in addition to which shall endure established yesteryear Law: but the Congress may yesteryear Law vest the Appointment of such inferior Officers, equally they intend proper, inwards the President alone, inwards the Courts of Law, or inwards the Heads of Departments.First, in addition to most fundamentally, Miller argues that Special Counsel Mueller is a “principal” officeholder in addition to thus could only endure appointed yesteryear the President, yesteryear in addition to with the advice in addition to consent of the Senate, which was non done here.
Second, Miller argues that fifty-fifty if Special Counsel Mueller is an “inferior” officer, his engagement was nevertheless unconstitutional because Congress has non “by law” vested the Attorney General with the authorization to appoint such a Special Counsel (in effect, a inquiry of statutory interpretation, virtually whether the engagement was ultra vires).
Third, Miller argues that fifty-fifty if Special Counsel Mueller is an “inferior” officer, in addition to fifty-fifty if Congress authorized the Attorney General to appoint him, the Deputy Attorney General, Rod Rosenstein, may non brand the engagement because he is non the “Head” of the Department of Justice, fifty-fifty where, equally here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation in addition to is thus unable to practice those functions.
If the courtroom of appeals were to concur that the Mueller engagement was unconstitutional, that would, of course, endure a real big deal. In a serial of posts over at Just Security, however, I do something of a "deep dive" into Appointments Clause arcana inwards guild to explicate why that’s a real unlikely outcome. I also identify 2 or iii questions the courtroom of appeals ask not, in addition to in all likelihood should not, endeavor to response definitively that mightiness possess got greater implications for developments apart from the illustration on appeal—including, importantly, the nature in addition to compass of the Acting Attorney General’s authorization to take away Mueller.
The first post offers a full general overview of the case, with links to the lower courtroom opinions in addition to the briefs on appeal.
In my second post, I explicate why there’s genuinely a serious question, non briefed yesteryear the parties, virtually whether the Appointments Clause applies to Mueller at all (a inquiry the courtroom of appeals tin probable avoid yesteryear only assuming, without deciding, that Mueller is a constitutional “officer”).
The third post is maybe the most important—not for purposes of resolving the Miller appeal itself, but to a greater extent than broadly for what it says virtually the officers throughout the government, including Mueller, whose independence is secured inwards component subdivision yesteryear tenure protections that foreclose “at will” removal. In that post, I accept number with the tentative proposition inwards Chief Judge Howell’s opinion that it mightiness endure proper—or necessary to avoid a hard constitutional question—for the courtroom to construe expansively the Acting Attorney General’s authorization to take away Mueller nether the DOJ Special Counsel regulations.
My fourth post addresses a handful of issues raised yesteryear Judge Friedrich inwards her opinion in a related illustration raising similar Appointments Clause challenges to Mueller, including: whether the Supreme Court’s conclusion inwards Morrison v. Olson (1988) is soundless "good law"; whether a bipartisan consensus has emerged that Morrison was wrongly decided; whether the Special Counsel is an inferior officeholder whose engagement was constitutional fifty-fifty nether the analysis of the Court’s after conclusion inwards Edmond v. United States (1999); in addition to whether the prospect of a possible rescission or amendment of the Special Counsel regulations affords Rosenstein greater command over the behavior of the Mueller investigation, in addition to whether that inquiry has whatsoever bearing on the Appointments Clause questions inwards the Miller case.
In my final post, I briefly hash out what I’ve labeled inwards a higher house equally the minute in addition to 3rd of Miller’s iii Appointments Clause arguments, both of which are predicated on the supposition that the Appointments Clause applies in addition to that Mueller is an inferior officer.
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