Article II of the Constitution includes the “Appointments Clause,” which says that the President, with the advice and consent of the Senate, shall appoint ambassadors, judges, and “officers of the United States,” while Congress may authorize the “Heads of Departments” to appoint “inferior officers.” With Special Counsel Robert Mueller’s investigation nearing an end, and his report giving rise to nervous anticipation across the political spectrum, an interesting question was recently answered by the federal Court of Appeals for the District of Columbia. Is the appointment of Mueller constitutional?
First, a short look back. In 1973, Attorney General Elliot Richardson appointed Archibald Cox to serve as Special Prosecutor to investigate “all offenses arising out of the 1972 election … involving the president, the White House staff, or presidential appointments.” When Alexander Butterfield told the Senate Watergate Committee that Nixon had installed a taping system in the White House, Cox first requested, and then subpoenaed, the tapes. Nixon responded by ordering Richardson to fire Cox. Richardson refused, and so did his deputy, William Ruckelshaus. It fell to number three in line, Solicitor General Robert Bork, to do the deed, known as the “Saturday Night Massacre,” whereupon Nixon himself appointed a new special prosecutor named Leon Jaworski.
Jaworski picked up where Cox left off, demanding full compliance with the subpoena. Nixon couldn’t very well make a challenge under Article II since he had appointed Jaworski. Nor did he describe the Watergate investigation as a “witch hunt,” although he used equally colorful language. Instead, he offered to produce edited transcripts of some tapes, but the ploy did him no good. Jaworski went to federal court, and Judge John Sirica ordered Nixon to turn over the tapes.
The Supreme Court upheld that ruling in short order by an 8-0 vote. Nixon’s failure to throttle the Special Prosecutor, or to establish an absolute executive privilege, stands as a landmark example of the rule of law. He resigned two weeks later.
In some ways, the current investigation resembles the country’s Watergate experience more than four decades ago. Once again, the process of electing the President is being held up to a mirror. However, this president did not appoint the investigator. Rather, on May 17, 2017, Deputy Attorney General Rod Rosenstein, standing in the shoes of the recused Attorney General Jeff Sessions, appointed Mueller, with a mandate to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation.”
This appointment raises a question under Article II, which is whether Rosenstein had the constitutional power to make it. The answer depends on whether Mueller is an “inferior officer” whose appointment Congress may authorize the head of a department to make. And if he is, was Rosenstein such a “Head?”
Thanks to Andrew Miller, a 34-year old former marijuana farmer and aide to Roger Stone, we have an answer, though not from the Supreme Court. Miller defied a grand jury subpoena on the grounds that the Special Counsel was not legitimate under Article II. On February 26, 2019, the Court of Appeals in Washington issued a decision upholding the appointment as constitutional.
The court’s opinion wades through a maze of federal laws and regulations, pointing out that in 1999 the Department of Justice issued rules dealing with the appointment of special counsels and placing “ultimate responsibility” in the hands of the Attorney General, who establishes the scope of any investigation, receives reports of any important events, and has authority to remove a special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”
If Mueller is a sufficiently high level “officer of the United States,” in the words of Article II, then according to the court’s opinion his appointment fails under the Appointments Clause because the President didn’t make it. If, however, he is an Article II “inferior officer” subject to overall supervision by someone whom the President did appoint, that is another matter. And that is what the court decided. In other words, since Mueller serves at the pleasure of a member of the President’s cabinet, and is subject to a high degree of executive oversight, he is “inferior,” constitutionally speaking.
Miller’s argument that Rosenstein was not the “Head of Department” fell on deaf judicial ears. Once Sessions became “disabled” by reason of his single-issue recusal, Rosenstein became the department “Head” for purposes of Article II.
Some pundits and democratic leaders are worried that Mueller’s report to his new boss, Attorney General William Barr, will not be made public. This despite Barr’s Senate Judiciary Committee testimony expressing his admiration for Robert Mueller and his pledge to release “as much as I can.”
There is a certain irony in all of this. We have no way of knowing what will come out of the Mueller investigation, or whether it will lead to White House subpoenas as in the Watergate investigation. Taking the Court of Appeals at its word, it’s a good thing that Attorney General Barr has overall control. Otherwise, the Mueller appointment would violate Article II, and the entire investigation would become a nullity.