NORTHWESTERN UNIVERSITY PRITZKER SCHOOL OF LAW

PUBLIC LAW AND LEGAL THEORY SERIES • NO. 18-14

Opinion on the Constitutionality

of Robert Mueller’s Appointment

Steven G. Calabresi
Northwestern University Pritzker School of Law

Electronic copy available at: https://ssrn.com/abstract=3183324

 Opinion on the Constitutionality of Robert Mueller’s Appointment
By Steven G. Calabresi 1

The appointment of Robert Mueller to be a Special Counsel to investigate whether President

Trump’s campaign illegally colluded with Russian agents in the 2016 presidential election violates
the Appointment Clause of the Constitution and is therefore unconstitutional. All actions taken by
Mueller since his appointment on May 17, 2017 are therefore null and void, including all of the
indictments he has brought, all the searches he has conducted including his phone-logging of
Michael Cohen, and all plea arrangements into which he has entered.

Mueller’s appointment violates the Appointments Clause in two ways. First, Congress has not by
statute vested in the Attorney General with the authority to appoint Special Counsel inferior offices
since the Ethics in Government Act expired in 1999. Although Attorney General Janet Reno in
1999 issued a regulation providing for the appointment of inferior officer Special Counsels in cases
of high-level or presidential wrongdoing, Congress never gave her the statutory power required by
the Appointments Clause to make such appointments. Robert Mueller’s appointment is thus
unconstitutional because ever since the Ethics in Government Act sunsetted out of existence in
1999, neither the President nor the Courts of Law nor the Heads of Departments have been vested
with the power to appoint inferior officer Special Counsels.

Some might defend Reno’s regulation by pointing to 28 U.S.C. Section 543, which allows the
Attorney General to appoint inferior officers to assist U.S. Attorneys or to prosecute Indians. The
short answer to this is that Mueller was not appointed to assist U.S. Attorneys or to prosecute
Indians. There is therefore no statutory authority for the Mueller appointment.

Second, Robert Mueller’s appointment is also unconstitutional because he has behaved, at a

minimum, like an Assistant Attorney General or like the 93 permanent U.S. Attorneys, who are all
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 Interim U.S. Attorney or an Assistant U.S. Attorney,
who are inferior officers, and who may be appointed to their office by a principal officer. Robert
Mueller’s appointment is therefore unconstitutional under Chief Justice Rehnquist’s majority
opinion in Morrison v. Olson, 487 U.S. 654 (1988) because it take away “too much” executive
power from the President.

It is also unconstitutional under Justice Scalia’s dissent in Morrison because Mueller does not have
a boss who is supervising and directing what he is doing. Deputy Attorney General Rosenstein
has deliberately abstained from playing such a role in part because he is a potential target of
Mueller’s probe, “which has strayed far beyond the original rationale of examining Russian
collusion.” Nothing about investigating the firing of Comey has anything to do with Russian
collusion. Since Rosenstein is the officer who actually carried out President Trump’s order to fire
1
Clayton J. & Henry R. Barber Professor, Northwestern Pritzker School of Law and co-author with Christopher S.
Yoo of The Unitary Executive: Presidential Power from Washington to Bush (2008). Copyrighted 2018 – all
rights reserved. This document can be cited and quoted without the author’s permission.

Electronic copy available at: https://ssrn.com/abstract=3183324

former FBI Director Jim Comey, he, Rosensetein, is unable to “supervise and direct” what Mueller
is doing, and Rosenstein is not trying to “supervise and direct” what Mueller is doing.

There is a constitutional way in which Special Counsel’s may be appointed, which was followed
in the Valerie Plame investigation under former President George W. Bush. In that case, Patrick
Fitzgerald, who was at the time the U.S. Attorney for the Northern District of Illinois, was asked
to add to his duties the “germane” duty of acting as Special Counsel to investigate the Valerie
Plame matter. This resulted in the prosecution and conviction of Scooter Libby, a close aide to
then-Vice President Richard Cheney. This prosecution was constitutional because: 1) Fitzgerald
was already a U.S. Attorney; 2) the duties of Special Counsel were akin to those of being a
permanent U.S. Attorney; and 3) Fitzpatrick served at the pleasure of the President. Mueller,
however, is not already a principal officer of the United States but is instead a private individual.
Attorney General Rosenstein thus violated the Appointments Clause in appointing Mueller.

This opinion will begin in Part I by analyzing the text of the Constitution to determine what the
Appointment Clause says about who may be principal and inferior officers of the United States.
It will then in Part II analyze the Supreme Court caselaw on this issue. It will then in Part III
discuss the practice as to this issue. Finally, in Part IV, it will conclude with a discussion of the
unconstitutionality of the Mueller appointment.

I. Constitutional Text

The Appointments Clause of Article II 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 U.S. Supreme Court has vigilantly enforced the Appointments
Clause ever since its landmark opinion in Buckley v. Valeo, 424 U.S. 1 (1976) where it struck down
an act of Congress that provided that two members of the newly created Federal Election
Commission must be nominated by the President, two must be nominated by the Speaker of the
House of Representatives, and two must be nominated by the President Pro Tempore of the Senate.
The Supreme Court said that all six of the members of the Federal Election Commission must be
nominated by the President under the Appointments Clause. The Court held that the Appointments
Clause constituted a vital power of the President.

“[T]he Constitution for purposes of appointment . . . divides all its officers into two
classes." United States v. Germaine, 99 U. S. 508, 99 U. S. 509 (1879). As the Supreme Court
stated in Buckley v. Valeo, 424 U. S. 1, 424 U. S. 132 ***:

Electronic copy available at: https://ssrn.com/abstract=3183324

 "Principal officers are selected by the President with the advice and consent of the Senate.
Inferior officers Congress may allow to be appointed by the President alone, by the heads
of departments, or by the [the Courts of Law]."

First, the Appointments Clause makes it clear that the default rule for federal officer appointment
is presidential nomination and senatorial confirmation – a process that Mueller never went through.
Mueller cannot therefore be a principal officer by definition. He also cannot be an inferior officer
by definitions for two reasons. First, inferior officer can only be created by a congressionally
enacted statute that vests the power to create the inferior officer in question in: the President, the
Courts of Law, or the Heads of Departments. No such statute exists, however, delegating the
power to appoint inferior officer Special Counsels to the Attorney General. Accordingly, Robert
Mueller’s appointment as an inferior officer is unconstitutional.

Some might defend Reno’s regulation by pointing to 28 U.S.C. Section 543, which allows the
Attorney General to appoint inferior officers to assist U.S. Attorneys or to prosecute Indians. The
short answer to this is that Mueller was not appointed to assist U.S. Attorneys or to prosecute
Indians. There is therefore no statutory authority for the Mueller appointment.

Second, Mueller’s appointment as an inferior officer is also unconstitutional because Mueller is

exercising so much power that he has to be a principal officer. It has been the longstanding practice
of Congress and of the Executive Branch to recognize principal officer status for all important and
powerful public officials even if they have a boss who can fire them. Thus, Cabinet Secretaries
have always been treated as being principal officers even though they can be fired by the president.
Deputy and Assistant Cabinet Secretaries, Ambassadors, and permanent U.S. Attorneys are also
principal officers, even though they can be fired by the Cabinet Secretary they report to as well as
by the president because of the importance of the office they hold. It is unthinkable that, for
example, the Deputy Secretaries of State or of Defense or of the Justice Department could be
appointed as an inferior officer. These officials simply exercise too much power to be denominated
inferior officers. They are instead principal officers, who must be nominated by the President and
confirmed by the Senate.

Turning to the federal judiciary, we find that federal court of appeals judges and federal district
judges have always been treated as being principal officers even though their decisions could be
overruled by the Supreme Court. No one thinks or should think that Congress could vest in the
Supreme Court the power to appoint lower court judges as inferior officers. It is obvious that
lower federal court judges must be principal officers nominated by the President and confirmed by
the Senate. Even though they are lower than another body in an organizational hierarchy, their
powers are so large that they cannot be considered inferior officers.

With respect to federal prosecutors, Congress has specified that the 93 U.S. Attorneys are all
principal officers who must be nominated by the President and confirmed by the Senate. The U.S.
Attorneys can all appoint Assistant U.S. Attorneys who are inferior officers and who report to
them. For reasons I shall explain below, it is obvious that Robert Mueller is behaving much more
like an Assistant Attorney General or a permanent U.S. Attorney than he is behaving like an
Assistant U.S. Attorney. Mueller has acted and has behaved like a principal officer even though

Electronic copy available at: https://ssrn.com/abstract=3183324

he was never nominated by the President nor confirmed by the Senate. In fact, Mueller is much
more powerful than is a permanent U.S. Attorney because he has nationwide jurisdiction and can
indict foreign citizens and corporations without clearance from main Justice as he did when he
indicted more than a dozen Russian citizens and three Russian business entities. This action had
a major effect on our foreign policy with Russia. Mueller’s actual powers are greater than those
of a permanent U.S. Attorney and are akin to those of an Assistant Attorney General. It is thus
crystal clear that Mueller is a principal officer.

The text of the Appointments Clause and the use of the word “inferior” elsewhere in the
Constitution makes it clear that there are two prerequisites that must be met for someone to be an
inferior officer. First, one must have a boss who the inferior officer reports to who can “direct and
supervise, or fire the inferior officer. And, second, an office cannot be inferior if the officer
exercises as much power as is exercised by the 93 permanent U.S. Attorneys, the Deputy and
Assistant Cabinet secretaries, or lower federal court judges. This second test, as to officer
inferiority, is somewhat subjective in close cases, but it is very real nonetheless. If a prosecutor
has as much power as an Assistant Attorney General or a permanent 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.

II. Supreme Court Caselaw

The Supreme Court’s caselaw makes it explicitly clear that there is a three part test, which must
be met before someone can be appointed as an inferior officer. The first part of the test is that the
office to which the inferior officer is being appointed must be one that Congress created by Law.
As we have already seen, the office of Special Counsel sunsetted out of existence in 1999, and
Congress has not by Law vested the power to create Special Counsels in the Attorney General.
For this reason alone, the Mueller appointment is unconstitutional.

Second, to be an inferior officer one must also have a boss who he reports to, who is “supervising
and directing” his work, who can overrule his decisions, and who can fire him at will. 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.

Justice Scalia admirably summarizes the history of the Appointments Clause in Edmond v. United
States, 520 U.S. 651 (1997). Justice Scalia, writing for a unanimous Supreme Court, said the
following, in general, about the Appointments Clause in Edmond v. United States:

“As we recognized in Buckley v. Valeo, 424 U.S. 1, 125 (1976), the Appointments Clause
of Article II is more than a matter of "etiquette or protocol"; it is among the significant
structural safeguards of the constitutional scheme. By vesting the President with the
exclusive power to select the principal (non-inferior) officers of the United States, the
Appointments Clause prevents congressional encroachment upon the Executive and
Judicial Branches. See id., at 128-131; Weiss, supra, at 183-185 (Souter, J., concurring);
Freytag v. Commissioner, 501 U.S. 868, 904, and n. 4 (1991) (Scalia, J., concurring). This
disposition was also designed to assure a higher quality of appointments: the Framers

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 anticipated that the President would be less vulnerable to interest group pressure and
personal favoritism than would a collective body. "The sole and undivided responsibility
of one man will naturally beget a livelier sense of duty, and a more exact regard to
reputation." The Federalist No. 76, p. 387 (M. Beloff ed. 1987) (A. Hamilton); accord, 3 J.
Story, Commentaries on the Constitution of the United States 374-375 (1833). The
President's power to select principal officers of the United States was not left unguarded,
however, as Article II further requires the "Advice and Consent of the Senate." This serves
both to curb executive abuses of the appointment power, see 3 Story, at 376-377, and "to
promote a judicious choice of [persons] for filling the offices of the union," The Federalist
No. 76, at 386-387. By requiring the joint participation of the President and the Senate, the
Appointments Clause was designed to ensure public accountability for both the making of
a bad appointment and the rejection of a good one. Hamilton observed:

"The blame of a bad nomination would fall upon the president singly and absolutely. The
censure of rejecting a good one would lie entirely at the door of the senate; aggravated by
the consideration of their having counteracted the good intentions of the executive. If an ill
appointment should be made, the executive for nominating, and the senate for approving,
would participate, though in different degrees, in the opprobrium and disgrace." Id., No.
77, at 392.

See also 3 Story, supra, at 375 ("If [the President] should . . . surrender the public patronage
into the hands of profligate men, or low adventurers, it will be impossible for him long to
retain public favor.")

It is thus clear that according to the Supreme Court, the Appointments Clause is an absolutely
critical feature of the separation of powers and of presidential power. I now turn to the first part
of the Supreme Court’s two part test as to officer inferiority. To be an inferior officer one must
have a boss who is “supervising and directing” one’s work.

A.

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. In Edmond v. United
States, Justice Scalia wrote into Supreme Court caselaw this aspect of his dissenting opinion in
Morrison v. United States, but he did not overrule Morrison v. Olson’s Appointment Clause
holding that inferior officers could not exercise too much power. As Justice Scalia said in Edmond:

“Our cases have not set forth an exclusive criterion for distinguishing between principal
and inferior officers for Appointment 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, 352-354 (1931). Most recently, in Morrison
v. Olson, 487 U.S. 654 (1988), we held that the independent counsel created by provisions

Electronic copy available at: https://ssrn.com/abstract=3183324

 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. Id., at 671-
672. ***

“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. It is not enough that other officers may be identified who
formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that
were the intention, the Constitution might have used the phrase "lesser officer." Rather, in
the context of a clause designed to preserve political accountability relative to important
government assignments, we think it evident that "inferior officers" are officers whose
work is directed and supervised at some level by others who were appointed by presidential
nomination with the advice and consent of the Senate.

This understanding of the Appointments Clause conforms with the views of the first
Congress. On July 27, 1789, Congress established the first executive department, the
Department of Foreign Affairs. In so doing, it expressly designated the Secretary of the
Department as a "principal officer," and his subordinate, the Chief Clerk of the Department,
as an "inferior officer” ***”

Deputy Attorney General Rod Rosenstein is by design not “supervising and directing” the work
that Robert Mueller is doing. In addition, Rosenstein is a potential target of Mueller’s
investigation since it was he who fired Jim Comey on President Trump’s orders. Thus, Mueller
is clearly not an inferior officer under Justice Scalia’s test in Edmond v. United States.

Moreover, Justice David Souter concurred in Justice Scalia’s opinion in Edmund v. United
States, but with the following critical caveat:

Because the term "inferior officer" implies an official superior, one who has no superior is
not an inferior officer. This unexceptionable maxim will in some instances be dispositive
of status; it might, for example, lead to the conclusion that United States district judges
cannot be inferior officers, since the power of appellate review does not extend to them
personally, but is limited to their judgments.

It does not follow, however, that if one is subject to some supervision and control, one is
an inferior officer. Having a superior officer is necessary for inferior officer status, but not
sufficient to establish it. See, e. g., Morrison v. Olson, 487 U. S., at 654, 722 ("To be sure,
it is not a sufficient condition for 'inferior' officer status that one be subordinate to a
principal officer. Even an officer who is subordinate to a department head can be a principal
officer") (SCALIA, J., dissenting). Accordingly, in Morrison, the Court's determination
that the independent counsel was "to some degree 'inferior'" to the Attorney General, see
id., at 671, did not end the enquiry. The Court went on to weigh the duties, jurisdiction,
and tenure associated with the office, id., at 671-672, before concluding that the

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 independent counsel was an inferior officer. Thus, under Morrison, the Solicitor General
of the United States, for example, may well be a principal officer, despite his statutory
"inferiority" to the Attorney General. See, e. g., 28 U. S. C. § 505 (directing Presidential
appointment, with the advice and consent of the Senate, of a Solicitor General to "assist
the Attorney General in the performance of his duties"). The mere existence of a "superior"
officer is not dispositive.”

Edmond v. United States thus did not overrule the inferior officer test of Morrison v. Olson, but
added to it the very important caveat that one could not be an inferior officer if one did not have a
boss. This leads me to the Morrison v. Olson test of officer inferiority.

B.

The second test for officer inferiority is the one laid out in Morrison v. Olson, which held a statute
could not constitutionally interfere with the President’s executive power “too much” by giving
executive power to so-called inferior officers thus taking away the President’s nomination power.
Specifically, Chief Justice Rehnquist says in his opinion for the Court in Morrison v. Olson that
four factors must be satisfied before an officer can properly be deemed an inferior office. First,
they must be removable by a boss. Second they must perform only “certain, limited duties.” Third,
the officer must be limited in jurisdiction. And, fourth, the officer must be given a job with a fixed
ending point.

The second part of Chief Justice Rehnquist’s four part test is clearly violated by the Robert Mueller
appointment. Mueller is not:

“empowered *** to perform only certain, limited duties. [The] independent

counsel's role [here] is [not] restricted primarily to investigation and, if appropriate,
prosecution for certain federal crimes. Admittedly, [Deputy Attorney General
Rosenstein seems to have] delegate[ed] to [Mueller] "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. [Mueller must] comply to the extent possible with the policies of the
Department. § 594(f).”

Moreover the third part of Chief Justice Rehnquist’s four part test for officer inferiority in
Morrison v. Olson is also violated by the Mueller appointment. Rehnquist says that to be an
inferior office one’s “office [must be] limited in jurisdiction.” As I will explain below that was
true in Morrison v. Olson, but it is demonstrably not true with respect to Mueller’s appointment.

The Mueller appointment is not the appointment of an inferior office because it flunks parts two
and three of Chief Justice Rehnquist’s four part test. The Mueller appointment also violates the
final part of Chief Justice Rehnquist’s Morrison opinion because it interferes “too much” with the
President’s executive power.

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The Roberts Supreme Court briefly revisited the two inferior officer appointment tests in Free
Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), 561 U.S. 477
(2010). In that case, Chief Justice Roberts wrote that:

“Our Constitution divided the “powers of the new Federal Government into three defined
categories: Legislative, Executive, and Judicial.” INS v. Chadha, 462 U.S. 919, 951
(1983). Article II vests the power “[t]he executive Power … in a ‘President of the United
States of America’ who must “take Care the Laws be faithfully executed.” Art. II, Section
1, cl. 1; id. Section 3. In light of “[t]he impossibility that one man should be able to perform
all the great business of the State”, the Constitution provides for executive officers to
“assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of
George Washington 334 (J. Fitzpatrick ed. 1939).”

The Chief Justice concluded that the PCAOB officers in question were removable at will by the
Securities and Exchange Commission and that the SEC had other power to review the
commission’s work. In light of these two factors taken together, Chief Justice Roberts concluded
that the PCAOB commissioners satisfied the Edmond test of officer inferiority who were being
directed and supervised by a principal officer and were, in addition, unimportant officers who did
not need to be nominated by the President and confirmed by the Senate. The PCAOB Court did
not overrule or even address the Morrison v. Olson test of officer inferiority, which had been
briefed by the parties. Morrison v. Olson, as supplemented by Edmond, remains good law today
with respect to officer inferiority.

III. Practice and Precedent (1789 to 2018)

I now turn to the past practice of Congress and the President with respect to designating who must
be a principal officer and who can be an inferior officer under the Appointments Clause.

A. Modern Practice

As I mentioned above, it has always been the case in the modern Twentieth Century government
of the United States that Deputy Cabinet Secretaries and Assistant Cabinet Secretaries, and
Ambassadors, and permanent U.S. Attorneys, must be treated as principal officers nominated by
the President and confirmed by the Senate. This is also the case for federal Court of Appeals and
District Court judges.

The general rule in modern times is that any office that is two rungs down from the President must
be held by a principal officer. Thus, a Deputy Cabinet Secretary, who is acting as a Cabinet
Secretary, must have below him or her some principal officers, like Assistant Cabinet Secretaries,
or Ambassadors, or permanent U.S. Attorneys who have been nominated by the President and
confirmed by the Senate. This modern practice is relevant because Mueller holds an office two
rungs down from the President with only Deputy Attorney General Rosenstein exercising power
between Mueller and President Trump. The modern practice overwhelming suggests that Mueller
ought to be a principal officer.

B. The Original Practice

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The original practice of the much smaller federal government between 1789 and the establishment
of the Department of Justice in 1870 also makes it clear that federal law enforcement personnel
must be supervised directly by a principal officer. The Judiciary Act of 1789 did not create a
Department of Justice, but it instead created an office of the Attorney General to render opinions
on the legality of executive branch actions, and it created District Attorney, who did not report to
the Attorney General, in each federal District Court jurisdiction who would bring federal
prosecutions. Section 35 of the Judiciary Act of 1789 made it clear that the District Attorneys
were created as principal officers who had to be nominated by the President and confirmed by the
Senate. The practice made it clear from the outset that, even though the District Attorneys were
not supervised and directed by the Attorney General, they were supervised and directed by the
President when it was necessary for him to do so.

At the time of the Founding, Presidents George Washington, John Adams, and Thomas Jefferson
all ordered the stopping or the starting of prosecutions by the District Attorneys thus supervising
and directing these principal officers in a very detailed way. Steven G. Calabresi & Christopher
S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008). For
example, in the Neutrality Proclamation of 1793, President Washington ordered the District
Attorneys to prosecute anyone who did not obey the command of his Neutrality Proclamation.
President Adams ordered the prosecution of several named Jeffersonian newspapers under the
Alien and Sedition Acts. And, President Jefferson explicitly order the stopping of a Sedition Act
prosecution on constitutional grounds. Jefferson also huddled closely with the District Attorney
in his former Vice President Aaron Burr’s Treason trial and was intimately involved with the
management of that case. Jefferson, moreover, began the tradition whereby an incoming
administration of a different political party would fire the U.S. Attorneys of his predecessors.
Thus, Jefferson fired Adams’ District Attorneys to bring in principal officer District Attorneys
who shared his values and the values of the American people who had elected him president.

From 1789 to 1862, the time period originalist care about, most District Attorneys were always
principal officers no matter what wrongdoing they were investigating. In 1863, at the height of
the Civil War when extra-constitutional things happened almost daily, Congress enacted a statute
that allowed for federal circuit courts to appoint Acting Interim U.S. Attorneys, who were inferior
and not principal officers, for short periods of time. This statute was amended during the Reagan
and second Bush Administration to forbid courts from making interim appointments of U.S.
Attorneys as inferior officers. After the perceived scandal of former Attorney General Alberto
Gonzales firing of seven U.S. Attorneys, Congress amended the law back and gave the courts again
the very limited power to appoint Interim U.S. Attorneys in highly unusual circumstances for short
periods of time who were inferior officers.

C. Practice as to Interim U.S. Attorneys

More specifically: The current law is 28 U.S.C. 546. It allows the Attorney General to make
interim appointments to vacancies of U.S. Attorney positions for 120 days. After that, if there is
no presidential appointment, the district courts can make the appointment. In 2005, the Patriot Act
had removed the courts from the process, allowing only the Attorney General to make interim
appointments and placing no time limit on how long the interim appointees can serve. Senate
Democrats rushed through an amendment in 2007 in the wake of the Bush U.S. attorney

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controversy. Only two things in the legislative history of the 2007 statute are important. First,
there was no express discussion of the appointments clause issue, although Rep. James
Sensenbrenner issued a short separate statement that said that courts should not exercise executive
functions (though he did not specifically reference the Appointments Clause). Second, there is a
footnote that reminds us that U.S. Attorneys were not subject to the direction of the AG until
1870. Before that, they were answerable only the President. That means that in 1863, there is no
doubt at all that they were principal officers.

Now go back to 1863. The law that first provided for appointment of interim U.S. Attorneys
through anything other than the mode for appointment of principal officers was a section of a short
bill for improving the "efficiency" of the judicial department. The first section of the bill allowed
circuit judges to hear cases in other circuits. The second section included the interim attorney
appointment authority. I can find no relevant legislative history; there is just a report of votes
going back and forth between the House and Senate, but one can speculate that the exigencies of
war may have had something to do with the legislation.

Bottom line: The law was obviously unconstitutional in 1863. Once the U.S. attorneys are
answerable to the Attorney General, post-1870, then we have to start looking more carefully at
what makes someone principal or inferior, but the 1863 statute that serves as the foundation for
the practice of allowing courts to appoint interim U.S. Attorneys was blatantly unconstitutional
when it was enacted. As was explained above, it continued to be unconstitutional after 1870
because, even when placed within an organizational hierarchy, the U.S. Attorneys continued to
have, and continue to have, too much power to be considered inferior officers.

D. Court of Appeals cases

The U.S. Courts of Appeals have said in a few cases that U.S. Attorneys can sometimes be inferior
officers, which I concede to be true under the majority opinion in Morrison v. Olsen (even if not
necessarily true as an original matter) when there is a court-appointed Interim U.S. Attorney. The
cases include: U.S. v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000) ("Measured against those
benchmarks [of Edmond and Morrison], United States Attorneys are inferior officers."); see also
id. at 24 ("The government ... urg[es] us to categorize all United States Attorneys, howsoever
appointed, as inferior officers."); U.S. v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999) ("In light of
Edmond, we conclude that United States Attorneys are inferior officers."), overruled on other
grounds, U.S. v. WR Grace, 526 F.3d 495 (9th Cir. 2008); U.S. v. Solomon, 215 F. Supp. 835, 838-
43 (SDNY 1963), cited with approval in Morrison, 487 U.S. at 676-77. In both of the court of
appeals cases, the courts concluded that U.S. Attorneys were sufficiently supervised to be inferior.

With all due respect, these court of appeals opinions overlook the fact that from 1789 to 1862 all
District Attorneys, as U.S. Attorneys were then called, were principal officers under Section 35 of
the Judiciary Act of 1789. For 229 years, every Congress that has sat, and all 45 Presidents have
acted on the assumption and on the reality that all Permanent U.S. Attorneys are and always have
been principal officers of the United States who must be nominated by the President and confirmed
by the Senate. This is what the U.S. Code provides for. Yes, since 1863, in a very small number
of instances, Congress has allowed judges to appoint Interim U.S. Attorneys, but that is the
exception that proves the rule, and an exception that traces its origin to a clearly unconstitutional

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Civil War statute. The rule is that, for 229 years, Permanent U.S. Attorneys have always been and
must be principal officers

E. Past Practice in the Department of Justice

The general rule from Section 35 of the Judiciary Act of 1789; to the creation of the Department
of Justice in 1870; to the Reagan and Second Bush Administrations and on to 2018, is that
permanent U.S. Attorneys have always been recognized by statute to be principal officers, while
interim U.S. Attorneys could be court appointed inferior officers under certain very limited
circumstances. It is thus the case that Robert Muellers’ appointment to serve as Special Counsel
as an inferior officer could be perhaps excused if he were an Interim Special Counsel inferior who
would step aside when a principal officer who would serve as permanent Special Counsel was
appointed. Mueller has obviously not behaved at all as if he were an Interim Special Counsel
having held power now for more than a year and having launched a breathtakingly, sweeping probe
of the President of the United States, which is at the top of the headlines on almost a daily basis.
Since I conclude the Mueller is behaving more like an Acting Assistant Attorney General, or a
permanent U.S. Attorney, I think his appointment violated our past practice under the
Appointments Clause.

1. Special Counsels (1869 to 1999)

My beloved colleagues at Northwestern Pritzker School of Law, John Paul Stevens Professor of
Law, Andy Koppelman, and Edna B. and Ednyfed H. Williams Memorial Professor of Law, Steve
Lubet have critized my analysis by saying it smacks of the French Revolution and is insufficiently
Burkean pointing to the use of special prosecutors to investigate scandals in the: 1) Ulysses S.
Grant Administration; 2) the Teapot Dome scandal of the 1920’s; 3) the Watergate scandals of the
1970’s; and 4) the twenty or so scandals handled under the Ethics in Government Act. They
strongly imply that if I were right, it would be impossible to investigate executive branch scandals
impartially, and so, therefore, I must be wrong.

It is Koppelman and Lubet, however, who are wrong because I think there is a perfectly
constitutional was of appointing a Special Counsel who could be quite impartial and fair. The way
to do it is to ask a sitting Senate-confirmed U.S. Attorney to take on the “germane” duty of being
a Special Counsel. This is what President George W. Bush’s Justice Department did in the Valerie
Plame investigation, which was prosecuted by permanent, Senate confirmed, U.S. Attorney Patrick
Fitzgerald and which resulted in the conviction of Scooter Libby. There was nothing at all
unconstitutional about Fitzgerald’s additional, germane appointment. Similarly, when
congressional Republicans recently demanded a Special Counsel to investigate alleged criminality
at the FBI, Attorney General Jeff Sessions quite constitutionally asked the U.S. Attorney for Utah
to take on that role in addition to his ordinary duties. The permanent U.S. Attorney for Utah is a
Senate-confirmed principal officer, and so it is entirely appropriate to give him this role. John W.
Huber served as permanent U.S. Attorney for four years under President Barak Obama, and he
was confirmed to a second four year term under President Donald Trump. The appointment of
Huber is a textbook model, which Departments of Justice ought to follow in the future, in
appointing Special Counsels.

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 a. The Grant Administration

I turn now to the practice of appointing Special Counsel in the Grant Administration; to investigate
the Teapot Dome scandal; to investigate the Watergate Scandals; and under the so-called Ethics in
Government Act from 1978 to 1999, when both Democrats and Republicans, agreeing the Act was
unconstitutional, allowed it to sunset out of existence. President Ulysses S. Grant appointed
himself two Special Counsels to investigate the Whiskey ring scandal, and Grant fired the first of
them and replaced him with the second. Thus, President Grant personally and closely “supervised
and directed” federal prosecutor efforts to investigate the Whiskey ring scandal, which did not
touch President Grant. Under these circumstances, with the President closely and personally
overseeing the Whiskey Prosecutions, Grant’s appointment of an inferior office, reporting directly
to him, were in my view constitutional. This precedent is obviously worlds away constitutionally
to what Mueller is now doing. The precedent is readily distinguishable from the case on hand.

b. The Teapot Dome Scandals

During the Teapot Dome scandals, Congress created by statute two Special Counsels one a
Democrat, and the other a Republican, and Congress further specified that both Special Counsels
must concur in any decisions. President Coolidge nominated and the Senate confirmed the two
Special Counsels to investigate Teapot Dome. Since the Special Counsels in the Teapot Dome
scandal were principal officers, their prosecution and conviction for the first time of a Cabinet
Secretary Albert Hall for taking bribes was perfectly constitutional. This precedent cuts against
Koppelman and Lubet’s argument because it shows that a principal officer was needed to conduct
this investigation, and two principal officers were chosen for the job. The Teapot Dome history
cuts against arguments that Mueller’s appointment was constitutional.

c. The Watergate Scandal

The Watergate Scandal was investigated first by Archibald Cox a close personal friend of President
Nixon’s nemesis, Sen. Edward M. Kennedy. The choice of Cox to be the Special Counsel in this
case was wildly inappropriate. Cox was no neutral arbiter who would be fair and non-partisan.
He should never have been chosen for this job for the same reasons Robert Mueller ought not to
be investigating the legality of the firing of his close personal friend, former FBI Director James
Comey. After Cox was fired in October, 1973, he was replaced by Leon Jaworski, a highly
regarded former President of the American Bar Association. This was a superb pick, as a policy
matter, since Jaworski was the right man for this job, but it was unconstitutional since Jaworski
was an inferior and not a principal officer. As it turns out, Watergate led to a lot of unconstitutional
behavior by President Nixon, and after Nixon was impeached when Congress passed a series of
unconstitutional laws clipping presidential power like the War Powers Act. One should not look
for precedents on constitutional matters to times of great crisis like the Civil War or the Watergate
scandal.

One must also not that the Watergate investigation occurred in 1973, during the forty year period
of time between 1936 and 1976, when no laws were struck down on Appointments Clause grounds
and when the Appointments Clause was thought to be as moribund as the Commerce Clause.
Beginning with Buckley v. Valeo, in 1976, and continuing on with Morrison v. Olsen, in the 1980’s;

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Edmund v. United States, in the 1990’s, and most recently, Free Enterprise Fund v. P.C.A.O.B.,
the Supreme Court has shown an ardent desire to police the Appointments Clause scrupulously.
The laissez-faire approach of the federal courts in 1973 when Leon Jaworski was the Watergate
Special Counsel is as long gone as are bell-bottom blue jeans and sideburns.

d. “Independent Counsels (1978 to 1999)

The Watergate scandal led to the passage of the Ethics in Government Act of 1978 (EIGA), which
provided for court appointed Special Counsels whenever the Attorney General thought that there
was reasonable evidence of unconstitutional action. The EIGA witch hunts under which more
than 20 Special Counsels were appointed and secured convictions was a dark hour in American
constitutionalism, which is why Justice Scalia’s lone dissent in Morrison v. Olsen is regarded by
many as being his finest hour on the Supreme Court. While Chief Justice Rehnquist’s opinion for
the Court upheld one prosecution on what set of facts it did so only after setting out the four part
text for officer inferiority that I mentioned above and according to which Mueller is not an inferior
officer. As Rehnquist emphasized, Special Counsel Alexia Morrison was prosecuting only one
former government official for two small crimes. She was thus inherently more like an Interim
U.S. Attorney, who can be an inferior officer, than she was like a permanent U.S. Attorney, who
must be a principal officer.

I have heard an argument against my Opinion expressed in this document, which is simply not
true. That argument is that the Rehnquist four part test in Morrison for officer inferiority is just
dicta given that the Court’s judgment was in favor of the Special Counsel. This is a ridiculous
claim. The test was meant to explain why in the case then in the Supreme Court, the Court thought
that Alexia Morrison, was, in fact, a constitutionally proper inferior officer. No one will ever know
whether the two big – indeed sprawling -- EIGA case brought in the 1980’s and 1990’s were
constitutional. because the first case, which involved the Iran-Contra scandal, was extinguished by
President George H. W. Bush’s Christmas pardons. The second case, involving Ken Starr’s four-
year investigation of Bill and Hillary Clinton ended up being resolved by a failure of the Senate to
convict on an impeachment brought against President Clinton in the Senate by managers from the
House of Representatives. Neither Iran-Contra nor the Whitewater and associated scandals cases
ever reached the Supreme Court, and so that institution never had a chance to consider whether
Lawrence Walsh and Ken Starr were inferior officers as was Alexia Morrison. Both Walsh and
Starr led many year-long investigations, into multiple crimes, committed by many very different
individuals. They thus flunk the Morrison v. Olson majority opinion approach, which says that
Special Counsels are only inferior officers if they bring only a few charges against one former
government official for two small crimes. To say that Morrison v. Olson is distinguishable from
the Iran-Contra scandal and the scandals Ken Starr was pursuing is akin to saying the surface of
the sun is hot.

The EIGA was allowed to sunset out of existence in 1999 because both leading Republicans, who
had been burned in Iran-Contra, and leading Democrats, who had been burned by Ken Starr, came
to think as Attorney General Janet Reno testified in 1999, that the EIGA was unconstitutional and
also a bad idea for policy reasons. On March 17, 1999, Attorney General Janet Reno testified
before the Senate Committee on Governmental Affairs against renewal of the EIGA. She said:

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 “I have come to believe *** that the Independent Counsel Act is structurally flawed and
that those flaws cannot be corrected within our constitutional framework. *** Our
Founders set up three branches of government: a Congress that would make the laws, an
Executive that would enforce them, and a judiciary that would decide when the had been
broken. The Attorney General, who is appointed by the President and confirmed by the
Senate is publically accountable for her decisions. The Attorney General must answer to
the Congress – and, ultimately, to the American people. And in this day of aggressive
journalism, sophisticated advocates, and skilled congressional investigators, we are held –
I believe – more accountable than ever.

In contrast, the independent counsel is vested with the full gamut of prosecutorial powers,
but little of its accountability. He has not been confirmed by the Senate, and he is not
typically subject to the same sorts of oversight or budget constraints that the Department
faces day in and day out. Accountability is no small matter. It goes to the very heart of
our constitutional scheme. Our Founders believed that the enormous power to prosecute –
should be vested in one who is accountable to the people. That way, and here I am
paraphrasing Justice Scalia’s dissent in Morrison v. Olson – whether we’re talking about
over-prosecuting or under-prosecuting,, ‘the blame can be assigned to someone who can
be punished.’

It was for this reason that the American republic survived for over 200 years without an
Independent Counsel Act. When high level officials have been accused of wrongdoing,
the Department has not hesitated to fully investigate. Over the last two decades, the
Department of Justice has obtained the convictions of 13,345 public officials and
employees from both sides of the aisle. The Department prosecuted Vice President Spiro
Agnew while he held office and also, Bert Lance, the Director of the Office of Management
and Budget, soon after he left the Administration [of former President Jimmy Carter.]

[W]e at the Department have come to believe that the [EIGA’S] goals have not been well
served by the Act itself – and that we would do better without a statute.”

Attorney General Reno’s arguments against the constitutionality of court appointed, independent,
Special Counsels strongly suggests that the EIGA regime was in her judgment both
unconstitutional and unwise. The defenders of the legality of Robert Mueller’s appointment, like
Andy Koppelman and Steve Lubet, cannot point to the 20 EIGA prosecutions as buttressing their
argument on behalf of Mueller. Attorney General Reno, whose testimony cites Justice Scalia’s
Morrison v. Olson dissent, clearly thinks these are not precedents we ought to follow. She is right.

2. Special Counsels (1999 to 2018)

Attorney General Janet Reno proceeded, after the EIGA had sunsetted out of existence, in 1999,
to issue new U.S. Justice Department Regulations governing the appointment of special counsels
in the future. These regulations are blatantly unconstitutional because Congress has never vested
the power to create inferior officer Special Counsels in the Attorney General. There is therefore
no statutory authority for the Mueller appointment.

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Some might defend Reno’s regulation by pointing to 28 U.S.C. Section 515(a), which provides
that: “(a) 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, who was at the time already the U.S. Attorney for the Northern District of New York,
appointed under law to take on the germane duty of being a Special Counsel to investigate the
Valerie Plame affair and to prosecute and convict 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 appointed
to assist U.S. Attorneys or to prosecute Indians. There is therefore no statutory authority for
the Mueller appointment.

28 U.S.C. 519 says that: The Attorney General has the power to supervise “all activities of special
attorneys appointed under section 543 of this title in the discharge of their respective duties.” 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 Janet Reno regulations concerning the appointment of inferior officer Special Counsels are
codified as: "28 CFR 600.1 - Grounds for appointing a Special Counsel." This regulation, in
question, reads as follows:

TITLE 28, Volume 2: (Judicial Administration)

§ 600.1 Grounds for appointing a Special Counsel.

"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 -

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 (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."

The special counsel regulations specify that a special counsel must be “a lawyer from outside the
US government.” Thus, under the DOJ regulations, it was unlawful for Patrick Fitzgerald to
prosecute the Valerie Plame matter because Fitzgerald was, at the time he served as Special
Counsel, a principal officer of the U.S. government and not “a lawyer from outside the U.S.
government” as the regulation on its face requires. This conclusion would also mean that Attorney
General Sessions acted illegally in asking John W. Huber, the U.S. Attorney for Utah to investigate
allegations into misconduct by the FBI. The U.S. Attorney for Utah, who has been twice confirmed
as a “principal officer” is by definition not “a lawyer from outside the U.S. government.”

What this means is that either the Department of Justice regulations, which are unsupported by
any statute, are unconstitutional because they preclude appointment of principal officers to be
Special Counsels, and thus they violate the Appointments Clause while also violating the Clause
because Congress has not by Law vested in the Attorney General the power to appoint inferior
officer Special Counsels.. Alternatively, if the DOJ regulations are unconstitutional then the
appointment of Patrick Fitzgerald as Special Counsel to investigate the Valerie Plame matter was
illegal as was Attorney General Sessions’ appointment of John Huber to investigate the FBI’s
Hillary-gate scandal.

I have no doubt that the correct answer to this question is that the Department of Justice regulations,
which have no basis in statutory law, are unconstitutional insofar as they both violate the
Appointments Clausee as to inferior officers and because they require that principal officers cannot
be Special Counsels because they are not “lawyer[s] from outside the U.S. government.” As I
explained above, minor criminal offenses, like those allegedly committed by former Assistant
Attorney General Ted Olson, can be prosecuted by an inferior officer who has a boss who can
remove said officer. Major complex cases of governmental corruption like the Valerie Plame
affair, the FBI Hillary-gate investigation, and Mueller’s investigation can only be constitutionally
undertaken by a principal officer contrary to the regulation. Since it is necessary to have Special
Counsels like Fitzpatrick and Huber to investigate complex high-level executive branch
wrongdoing, the Justice Department should amend its presently unconstitutional regulation under
which Robert Mueller was appointed. This analysis further shows the illegality of the Mueller
appointment. Mueller has twenty something indictments under his belt. One cannot honestly say
that he is conducting a mere fishing expedition or that he is prosecuting only one person for only
two crimes, as in Morrison v. Olson.

There is an OLC opinion, which suggests that U.S. Attorneys can, at times be inferior
officers. United States Attorneys-Suggested Appointment Power of the Attorney Gen.-
Constitutional Law (Article II, S 2, Cl. 2), 2 U.S. Op. Off. Legal Counsel 58, 59, 1978 WL
15265 (1978) ("In light of this interpretation the U.S. Attorneys can be considered to be inferior
officers, since 28 U.S.C. § 519 authorizes the Attorney General to direct all U.S. Attorneys in the
discharge of their duties."). This OLC interpretation was endorsed more recently in The

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Constitutional Separation of Powers Between the President & Cong., 20 U.S. Op. Off. Legal
Counsel 124, 1996 WL 876050, at *17 (1996).

I doubt that Interim U.S. Attorneys or, perhaps, even an Interim Special Counsel can be an
inferior officer, although there is federal court of appeals caselaw and an OLC opinion, which say
they can. But, I think there is no doubt whatsoever that we would hear howls of outrage from the
U.S. Senate, if the Department of Justice were to do away with the Senate’s role in confirming
U.S. Attorneys, which more often in practice means picking them. Making U.S. Attorneys inferior
officers who could be appointed without consulting the Senate is unconstitutional. Such a move
would radically shift power from the Senate to the executive branch. Two-hundred, twenty-nine
years of consistent practice makes it abundantly clear that OLC is simply wrong if it thinks
Permanent U.S. Attorneys can be picked without presidential nomination and senatorial
confirmation.

The EIGA expired in 1999, and it was replaced in that same year by the Justice Department
regulation discussed above. Four, Special Counsels have been appointed since then: 1) John
Danforth, a lawyer from outside the government, who investigated the FBI’s conduct during the
Waico siege; 2) Patrick Fitzgerald, a permanent U.S. Attorney to investigate the Valerie Plame
matter; 3) Robert Mueller, a lawyer from outside the U.S. government, to investigate Russian
collusion with the Trump campaign in the 2016 presidential election; and 4) John Huber, a
permanent U.S. Attorney, to investigate alleged wrongdoing by the FBI.

Special Counsel John Danforth conducted lengthy and extensive hearings into the FBI’s conduct
in the Waco siege, and he issued a massive report on the subject. Since Danforth brought no
criminal charges against anyone, his appointment was obviously permissible under the
Appointments Clause. Danforth was an inferior officer, and he could thus be chosen from among
the ranks of private citizen lawyers with no need for presidential nomination and senatorial
confirmation.

In contrast, Special Counsels Patrick Fitzgerald and John Huber are principal officers of the United
States, and their appointments were, and are constitutional, because they conform with the
Appointments Clause by adding new duties to their offices that were germane to their existing
duties. Both Fitzgerald and Huber were nominated by the President and confirmed by the Senate
to be one of the 93 U.S. Attorneys. Adding a temporary special criminal investigation to the duties
of their principal office is thus a germane addition under the Appointments Clause. See Weiss v.
United States, 510 U.S. 163 (1994). One could not take a principal officer from outside the Justice
Department, like say the Ambassador to Switzerland, and add to his duties the job of being a
Special Counsel in the Valerie Plame matter or in the matter of alleged wrong-doing by the FBI.
Such additional duties are not germane to the principal office to which the Ambassador to
Switzerland has been appointed. Such an action would violate the Appointments Clause as would
an order that the U.S. Attorney for the Northern District of Illinois and the U.S. Attorney for Utah
swap places and jurisdictions. Home State Senators from Illinois and Utah would rightly object
that a total post-confirmation swap of duties of the kind described above is not allowed.

But, the limited duties of being a Special Counsel in the Valerie Plame affair and in the alleged
wrongdoing by the FBI are germane to the U.S. Attorney appointments they were nominated and

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confirmed to have. Thus, I think the Fitzpatrick and Huber appointments are permissible. That
leaves only the question of the legality of the appointment of Robert Mueller, a lawyer from outside
the government who is not a principal officer of the United States to be a Special Counsel. I will
turn to that subject now.

IV. Application of the Legal Analysis Above to Robert Mueller’s Appointment

Robert Mueller is not an inferior officer for two reasons: First, Congress never by Law vested in
the Attorney General the power to appoint inferior office Special Counsels. This, alone, is a blatant
violation of the Appointments Clause as to appointments of inferior officers. Some might defend
Reno’s regulation by pointing to 28 U.S.C. Section 543, which allows the Attorney General to
appoint inferior officers to assist U.S. Attorneys or to prosecute Indians. The short answer to this
is that Mueller was not appointed to assist U.S. Attorneys or to prosecute Indians. There is
therefore no statutory authority for the Mueller appointment.

Second, Mueller is exercising way more powerful than any inferior officer in the government, and
is, in fact, behaving much more like a principal 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 so that Mueller can be “independent”. In fact, Rosenstein has told the Special
Counsel, according to the Associated Press, that he realizes that he is a potential target of Mueller’s
investigation, and that he will recuse himself at any time, if Mueller asks him to do so. What this
means, in practice, is that it is easier for Mueller to remove Rosenstein than it is for Rosenstein to
remove Mueller. It also means that Rosenstein cannot “supervise and direct” Mueller as an inferior
officer per Justice Scalia’s test of officer-inferiority set forth in Edmund v. United States. For this
reason, Mueller is in effect and in practice exercising the powers of a principal officer even though
he has not been nominated by the President or confirmed by the Senate.

Moreover, Robert Mueller is also not an inferior officer under Chief Justice Rehnquist’s test in his
majority opinion in Morrison v. Olson. At least two of the four reasons the Supreme Court gave
for finding Alexia Morrison to be an inferior officer in Morrison v. Olson are not met in this case.
Rehnquist holds that an officer is inferior if: 1) she was empowered to perform only certain limited
duties and 2) she had limited jurisdiction. On the facts of the case, Chief Justice Rehnquist
concluded at the end of his opinion that the statute, which authorized Morrison’s appointment, and
which has since sunsetted out of existence, did not interfere “too much” with presidential power
to control the executive branch.

This conclusion is defensible on the facts of Morrison v. Olson. In that case, only one government
official – Ted Olsen – was prosecuted for one or two crimes, which were the unlawful withholding
of documents from Congress. At the time the prosecution was brought, Ted Olson had left public
office and was a private citizen. This was a case where the Special Counsel was: 1) performing
only certain limited duties; and 2) had only limited jurisdiction. Accordingly, the Supreme Court
was probably right in concluding that on the facts of the Morrison case the Special Counsel was
not interfering “too much” with presidential power.

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In Robert Mueller’s case, however, Mueller is investigating whether the sitting president of the
United States obstructed justice by firing Mueller’s longtime friend Jim Comey to conceal
collusion between the Trump campaign and Russia into the 2016 presidential election. Instead of
pursuing only one person on a limited matter, Mueller has without any real supervision by Deputy
Attorney General Rod Rosenstein: 1) indicted Paul Manafort, Trump’s former campaign manager
on two counts of misconduct having nothing to do with collusion with Russia; 2) indicted and
accepted a plea bargain from Michael Flynn, Trump’s former National Security Advisor, for the
crime of lying to government officials – an offense which Comey is guilty of and for which he has
not been prosecuted; 3) obtained a similarly dubious plea bargain with former Trump campaign
official George Papadopoulos; 4) indicted 13 Russian citizens and three Russian business entities
– a decision, which has major foreign policy consequences; 5) prosecuted Richard Pinedo and
Dutch attorney Alex van der Zwaan; 6) subpoenaed numerous additional people; 7) wiretapped
telephone calls covered by Attorney-client privilege between President Trump and his longtime
personal lawyer Michael Cohen; and 8) referred information illegally obtained by a phone log of
Cohen’s phone to the office of the U.S. Attorney for the Southern District of New York for
prosecution for among other things criminally abusing the attorney-client privilege.

Mueller’s investigation has made controlled leaks of information to the press designed to
embarrass the President and hinder him in the performance of his constitutional duties, and his
investigation has dominated the headlines for one year now distracting President Trump from
performing his job and making Mueller far more powerful and well-known than are any of the ten
Assistant Attorneys General or the 93 U.S. Attorneys, all of who are principal officers nominated
by the President and confirmed by the Senate. Unlike the officers in Edmond v. United States or
in Free Enterprise Fund v. PCAOB, Robert Mueller’s work is not being “supervised and directed”
by principal officer Rod Rosenstein who has treated Mueller as if he was “independent”.
Moreover, unlike the Morrison v. Olson investigation, this investigation is not limited in scope or
in jurisdiction. To the contrary, Mueller’s investigation is breathtaking in scope, his indictment of
Russian citizens and business entities directly 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.

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. He is best analogized to an Assistant Attorney General or a permanent
U.S. Attorney and not to an Interim U.S. Attorney or to an Assistant U.S. Attorney or to a special
assistant to Rosenstein. Thus, even though Mueller has a boss in Deputy Attorney General Rod
Rosenstein, he is not an inferior officer in any meaningful way. Mueller is, in fact, more powerful
than are any of the permanent U.S. Attorneys because he has nationwide jurisdiction and has
indicted more than a dozen Russian citizens and three Russian business entities. He is thus more
akin to an Assistant Attorney General than to even a permanent U.S. Attorney. The Assistant
Attorneys General have always been treated as being principal officers who must be nominated by
the President and confirmed by the Senate. It follows afortiori that Mueller is a principal officer
and that his appointment is unconstitutional because Mueller was not nominated by the President
and confirmed by the Senate.

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I should add that while Deputy Attorney General Rod Rosenstein is a principal officer and could
personally himself take all of the actions Mueller took, he cannot delegate his principal officer
status to Mueller any more than Donald Trump could delegate his power to veto legislation or his
Commander-in-Chief power to Mueller. The Constitution itself assigns the veto power to the
President and the principal officer power to Rosenstein, and it is unconstitutional for either of them
to give their constitutional powers to some civilian third party.

The Department of Justice regulation under which Mueller was appointed is unconstitutional
because it violates the Inferior Officer portion of the Appointments Clause. Congress quite simply
never vested by Law the power in the Attorney General to appoint inferior officer Special
Counsels. Moreover, the Department of Justice did not even follow its unconstitutional regulation
when it appointed Patrick Fitzgerald and John W. Huber to be Special Counsels. The
constitutionally correct approach for the Department to pursue is to follow the Fitzpatrick and
Huber appointment precedents and to rewrite the current Special Counsel regulation, so that
Special Counsels can be appointed in conformity with the Appointment Clause when it is
necessary, as it is with Mueller, that the Special Counsel be a principal officer.

The Mueller investigation is unconstitutional. This means the indictments he brought are null and
void; the subpoenas he has issued are null and void; the wiretaps he has engaged in were and are
unconstitutional; and his referral of information to the U.S. Attorney for the Southern District of
New York is unconstitutional because any information he obtained is the fruit of a poisonous tree.
The Michael Cohen searches and investigation are thus unconstitutional as are all the other
searches and investigations of Michael Cohen’s associates, which are being conducted in the
Southern District of New York. They all stem from Mueller’s unconstitutional appointment, and
they are all thus the fruit of a poisonous tree.

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