US law is not on the side of Mueller’s appointment as special counsel

Some defenders of the constitutionality of Special Counsel Robert Mueller’s appointment defend the appointment by claiming that Mueller is an inferior officer of the United States who does not need to be nominated by the president and confirmed by the Senate.  This argument is wrong.

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.  

{mosads}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.

The Appointments Clause creates a default rule that all officers of the United States are principal officers who must be nominated by the president and confirmed by the Senate.  It takes affirmative action by passing a statute for Congress to vest in the attorney general the power to appoint an inferior officer to be a special counsel. Since Congress has never passed such a statute, Robert Mueller is not, and cannot be, an inferior officer.

Congress has, from 1863 to 1986, and, from 2007 to the present day, vested in federal district judges the specific power to appoint interim U.S. attorneys.  That power is codified at 28 U.S.C. 546. The Ethics in Government Act of 1978 (EIGA), which expired in 1999 explicitly vested in a special three judge court the power to appoint Independent Counsels like Ken Starr and Lawrence Walsh. But, after the EIGA sunsetted out of existence, Congress did not pass a law granting the attorney general the power to appoint special counsels as inferior officers.

From 1789 to 2018 – for a period of 229 years – permanent U.S. attorneys have always been principal officers of the United States.  Given the importance of Mueller’s job relative to that of the U.S. attorney for Wyoming, I think it is obvious on the face of things that Mueller is acting as an unconstitutionally appointed principal officer.

But, leaving that aside, it is crystal clear that while interim U.S. attorneys can be inferior officers of the United States, Robert Mueller is not an inferior officer special counsel because Congress never passed a law after 1999 vesting in the attorney general the power to appoint an inferior officer special counsel. Robert Mueller is, instead, at best an employee and, under Buckley v. Valeo, 424 U.S. 1 (1976), employees cannot deprive citizens of life, liberty, or property on their own, which makes Mueller’s appointment as an inferior officer unconstitutional.

Steven G. Calabresi is a co-author of “The Unitary Executive: Presidential Power from Washington to Bush” and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.