On May 17, 2017, Acting Attorney General Rod Rosenstein appointed Robert Mueller to serve as Special Counsel for the United States Department of Justice.  As Special Counsel, Mueller was tasked with overseeing an FBI investigation into potential Russian inference with the 2016 presidential election, including “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and any federal crimes committed with the intent to interfere with the Special Counsel’s investigation.  As part of that investigation, Mueller has issued subpoenas to certain individuals.  One subject of those subpoenas sought to quash them, arguing that the appointment of the Special Counsel violated the Constitution’s Appointments Clause.  On July 31, 2018, the district court for the District of Columbia denied that individual’s second motion to quash the subpoena, and that individual has now appealed to the D.C. Circuit Court of Appeals.

CAC filed a friend-of-the-court brief on behalf of constitutional and administrative law scholars, arguing that Mueller’s appointment is constitutional.  The Appointments Clause requires principal Officers to be nominated by the President and confirmed by the Senate, but permits inferior Officers to be appointed by the President alone, the Head of a Department, or by Courts of Law.  In our brief, we explain that the Special Counsel is an “inferior Officer” under the Clause, and his appointment by the Acting Attorney General—the Head of a Department—was therefore constitutional.  First, our brief argues that under Edmond v. United States, the Special Counsel is an inferior Officer because his work is directed and supervised by the Acting Attorney General, who is a principal officer.  Indeed, the Acting Attorney General has “virtually plenary authority” over the Special Counsel, can reverse the Special Counsel’s decisions, and can remove him from office.  Although the Department of Justice regulations governing Special Counsels ostensibly provide them with for-cause removal protection and other forms of independence, those regulations are revocable by the Attorney General.  Moreover, the regulations themselves afford the Attorney General wide latitude to supervise and direct the Special Counsel, and permit the Attorney General to fire the Special Counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”  In addition, under Morrison v. Olson, the Special Counsel is an inferior Officer because he is removable by a higher official, and he has duties, jurisdiction, and tenure that are limited in scope.  Finally, our brief argues that the Special Counsel is supervised as closely as, and has fewer duties and narrower jurisdiction than, United States Attorneys, who themselves have long been considered inferior Officers.  For all those reasons, the Special Counsel is an inferior Officer and his appointment by Acting Attorney General Rosenstein was constitutional.

In a unanimous ruling, the D.C. Circuit affirmed the district court, concluding that Mueller’s appointment as Special Counsel was constitutional. The court held that under the Appointments Clause, Mueller is an inferior officer, and thus could be appointed by Acting Attorney General Rod Rosenstein, who qualified as the “Head of [a] Department” for purposes of the appointment.