Tuesday, May 22, 2018
Yes, according to Professor Steven Calabresi in an article in the Hill. However, this answer to this question is not as clear as Professor Calabresi claims. After having reread the key Supreme Court cases on this issue, I conclude that Mueller's appointment was constitutional.
Professor Calabresi writes, "I’ve explained in previous writings why Robert Mueller’s appointment is unconstitutional under Chief Justice Rehnquist’s majority opinion in Morrison v. Olson. The basic problem is that Mueller is more powerful and famous than are any of the 96 U.S. attorneys, but unlike them he was never nominated by the president and confirmed by the Senate.
In this investigation, Mueller is not acting like an assistant U.S. attorney who is an inferior officer. He is instead acting like a U.S. attorney, who is a principal officer and who must be nominated by the president and confirmed by the Senate."
Elsewhere he has elaborated,"At issue is the Constitution’s Appointments Clause, which provides that “principal officers” must be appointed by the president with the Senate’s consent. Rehnquist wrote that independent counsel Alexia Morrison qualified as an “inferior officer,” not subject to the appointment process, because her office was “limited in jurisdiction” to “certain federal officials suspected of certain serious federal crimes.”
Mr. Mueller, in contrast, is investigating a large number of people and has already charged defendants with many different kinds of crimes, including—as in Mr. Manafort’s case—ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys. He is behaving like a principal officer."
He added, "The unconstitutionality of Mueller’s appointment renders everything he has done since May 17, 2017, unconstitutional as well." "When an official uses government power in an unconstitutional way, anything that results from it is subject to the exclusionary rule and is not admissible in court."
The Appointments Clause of Article II of the Constitution reads as follows:
"[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." U. S. Const., Art. II, § 2, cl. 2."
The issue is whether a special counsel (Mueller) is a "principal officer" or an "inferior officer." If Professor Calabresi is correct that Mueller is a principal officer, his appointment would be unconstitutional.
Mueller was appointed under 28 CFR 600.1:
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
According to Edmond v. U.S., "Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes. Among the offices that we have found to be inferior are that of a district court clerk, Ex parte Hennen, 13 Pet. 225, 258 (1839), an election supervisor, Ex parte Siebold, 100 U. S. 371, 397-398 (1880), a vice consul charged temporarily with the duties of the consul, United States v. Eaton, 169 U. S. 331, 343 (1898), and a "United States commissioner" in district court proceedings, Go-Bart Importing Co. v. United States, 282 U. S. 344, 352354 (1931). Most recently, in Morrison v. Olson, 487 U. S. 654 (1988), we held that the independent counsel created by provisions of the Ethics in Government Act of 1978, 28 U. S. C. §§ 591-599, was an inferior officer. In reaching that conclusion, we relied on several factors: that the independent counsel was subject to removal by a higher officer (the Attorney General), that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited. 487 U. S., at 671-672."
It is clear that Muller is subject to removal by a principal officer, the Deputy Attorney General. So the question becomes whether the special counsel performs only limited duties, whether his jurisdiction is narrow, and whether his tenure is limited.
Professor Calebresi nay be correct that "Mr. Mueller . . . is investigating a large number of people and has already charged defendants with many different kinds of crimes, including—as in Mr. Manafort’s case—ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys. He is behaving like a principal officer." The question, however, how does Mueller's appointment correspond with the criteria of Edmund?
Is the special counsel's jurisdiction limited? Under 28 CFR 600.4, "The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted." In other words, Mueller's jurisdiction is limited to that given him by Rosenstein. While the exact language of Mueller's appointment is not known at this time, his jurisdiction is obviously limited. He does not have the broad authority of a United State Attorney, who is subject to the Appointments Clause by statute. As stated in Edmond, "an independent counsel may investigate and prosecute only those individuals, and for only those crimes, that are within the scope of jurisdiction granted by the" appointing officer.
Obviously, the special counsel's term is limited by the extent of his appointment. According to Edmund, "'limited in tenure,' as that phrase was used in Morrison describe[s] 'appoint[ment] essentially to accomplish a single task [at the end of which] the office is terminated.'" While the scope of Mr. Mueller's investigation does seem broad, it is limited to a single task--investigating Russian interference in the election. (Again, the public has not seen the exact wording of the appointment.)
Whether Mueller is performing only limited duties is a harder question. As Professor Calabresi has stated, "Mr. Mueller, in contrast, is investigating a large number of people and has already charged defendants with many different kinds of crimes, including—as in Mr. Manafort’s case—ones unrelated to any collaboration between the Trump campaign and Russia." However, Mr. Mueller's duties are limited to the appointment by Rosenstein. They are in no way as broad as a U.S. attorney. Perhaps Mr. Mueller has exceeded the authority of his appointment, but this does not make his appointment unconstitutional.
Edmund added, "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." Under 28 CFR 600.7, "The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3)." In addition, "The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal." Under, this regulation Mr. Muller has a superior.
The situation of the Mueller appointment is very similar to that in Morrison v. Olsen. This case concerned the appointment of an independent counsel, under criteria similar to that of appointing a special counsel. "Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V), [Footnote 1] allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high ranking Government officials for violations of federal criminal laws."
The court wrote,
"We need not attempt here to decide exactly where the line falls between the two types of officers, because, in our view, appellant clearly falls on the "inferior officer" side of that line. Several factors lead to this conclusion.
First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is, to some degree, "inferior" in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice," § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that, in policy matters, appellant is to comply to the extent possible with the policies of the Department. § 594(f).
Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over, the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the "ideas of tenure, duration . . . and duties" of the independent counsel, Germaine, supra, at 99 U. S. 511, are sufficient to establish that appellant is an "inferior" officer in the constitutional sense."
The court also pointed out that "All of this is consistent with our reference in United States v. Nixon to the office of Watergate Special Prosecutor -- whose authority was similar to that of appellant-- as a "'subordinate officer.'"
Based on the above, I think that any court that follows Morrison and Edmund will conclude that Muller's appointment was constitutional. Of course, if the case ever reached the Supreme Court, it could change the criteria for distinguishing between an inferior and a principal officer. However, under current law, Professor Calabresi is wrong that Mueller's appointment was unconstitutional.
P.S. As I wrote above part of Professor Calabresi's argument is that "The basic problem is that Mueller is more powerful and famous than are any of the 96 U.S. attorneys. . ." However, no case uses this as a criteria for determining what is an inferior officer.
He also states that "Mr. Mueller, in contrast, is investigating a large number of people and has already charged defendants with many different kinds of crimes, including—as in Mr. Manafort’s case—ones unrelated to any collaboration between the Trump campaign and Russia. That’s too much power for an inferior officer to have. Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving. Mr. Mueller is much more powerful today than any of the 96 U.S. attorneys. He is behaving like a principal officer." Again, no case supports Professor Calabresi's argument. Also, how he is behaving doesn't affect the constitutionality of his appointment.
Professor Calabresi has posted a more detailed version of his argument here. This version does not change my conclusion that Mueller's appointment was constitutional.
1. He states, "Robert Mueller has behaved like the 96 U.S. Attorneys who are principal officers of the United States and who must be nominated by the President and confirmed by the Senate. He has not behaved like an Assistant U.S. Attorney who is an inferior officer and who may be appointed by a principal officer like Deputy Attorney General Rod Rosenstein. Robert Mueller’s appointment is therefore unconstitutional under Chief Justice Rehnquist’s majority." None of the cases on inferior officers concerns how the officer is behaving. Thus, this argument is untethered in the law. A constitutional law professor should not be making such an argument. In addition, how he is behaving does not affect the validity of his original appointment.
2. He states, "If a prosecutor has as much power as a U.S. Attorney, he is by definition a principal officer of the United States who must be nominated by the President
and confirmed by the Senate." There is no law to back this up. It is not a legal argument. Also, it is factually inaccurate. He power does not approach that of a U.S. Attorney.
3. He states, "The second part of the test is that an inferior officer cannot exercise so much power that they must be a principal officer nominated by the President and
confirmed by the Senate." This is Calabresi's reading of the law; no case says it directly. I feel he is misreading the cases.
4. He states, "Justice Scalia explicitly says in Edmond v. United States that part of the test that must be met for an officer to be an inferior officer is that one must have a principal officer boss “who is direct[ing]and supervis[ing] at some level” the work that the inferior officer is doing." This is a correct statement of the law. He continues, "Deputy Attorney General Rod Rosenstein is by design not supervising and directing the work that Robert Mueller is doing. Thus, Mueller is not an inferior officer under Justice Scalia’s test in Edmond v. United States." As I stated above, the Deputy Attorney General does supervise Mueller under 28 CFR 600.1 et.seq. First, Rosenstein defined Mueller's jurisdiction. Second, "the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued." This sounds like supervision to me. Third, the attorney general can remove a special prosecutor for cause. Finally, Mueller's appointment is very similar to the independent council that the Court upheld in Morrison.
5. He states, "Robert Mueller is not an inferior officer under Justice Scalia’s test of officer inferiority as set out in Edmond v. United States and in Free Enterprise Fund v. PCAOB because Deputy Attorney General Rod Rosenstein is not supervising and directing Mueller’s work but is rubber-stamping it." How does Calabresi know this? Rosenstein may agree with what Mueller is doing. More importantly, the regulation gives Rosenstein supervising powers, as demonstrated above. The test under the Appointments Clause is at the time of the appointment, not later.
6. He states, "To the contrary, Mueller’s investigation is breathtaking in scope, his indictment of Russian citizens and business entities interferes with President Trump’s ability to control foreign policy with Russia, and his breach of Attorney-client privilege is a threat to civil liberties unlike any that has been attempted in this country since Senator Joe McCarthy’s red scares." Whether or not this is true, it doesn't concern Mueller's appointment; it concerns his later actions.
7. He concludes, "There is no question at all that Robert Mueller has behaved over the past year as if he were a principal officer of the United States even though he has never been nominated by the President or confirmed by the Senate." Again, Mueller's behavior has nothing to do with the constitutionality of his appointment. Maybe, he is overstepping his appointment, but this has nothing to do with the Appointments Clause.
Professor Steve Vladeck has written a critique of Calabresi's argument that comes to the same conclusion as mine. (here) He declares, "As I suggested on Twitter earlier today, it isn’t actually one argument; it’s a weird amalgamation of two different claims: That Mueller’s appointment violates the Appointments Clause, or that Mueller’s conduct violates the Appointments Clause. Even properly understood, though, neither claim is remotely persuasive." He continues, "In a nutshell, in every way that matters, the applicable federal regulation (28 C.F.R. part 600) bestows comparable or less authority on the Special Counsel than what the Ethics in Government Act of 1978 bestowed on the Independent Counsel—authority that led the Morrison majority to conclude that the Independent Counsel was an inferior officer. If Calabresi thinks Morrison correctly determined that the Independent Counsel was an inferior officer for purposes of the Appointments Clause, then it has to follow that the Special Counsel is, as well." He adds, "Taking the first part first, what Calabresi is really arguing here is that Mueller is exceeding the scope of his lawful authority—as provided by Part 600 and as delegated to him by Acting Attorney General Rosenstein. Even assuming there’s merit to that charge (more on that in a moment), it has nothing whatsoever to do with the Appointments Clause." He concludes, "What Calabresi is arguing is a crucial (and, in my view, incoherent) step beyond that debate—that the entire investigation is constitutionally invalid. It’s an extraordinary claim to begin with, it’s thoroughly under-substantiated in both the op-ed and the “opinion,” and it’s not remotely compelled even by the strictest adherence to a “unitary executive” theory of presidential power."