Law School Case Brief
In re Grand Jury Investigation - 916 F.3d 1047 (D.C. Cir. 2019)
As interpreted by the United States Supreme Court, the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, distinguishes between principal officers, who must be nominated by the President with advice and consent of the Senate, and inferior officers, who may be appointed by the President alone, or by heads of departments, or by the judiciary, as Congress allows.
In a press release, Attorney General Jeff Sessions recused himself "from any existing or future investigations of any matters related in any way to the campaigns for President of the United States." He further stated in the same release that "consistent with the succession order for the Department of Justice," the then-Acting Deputy Attorney General Dana Boente "shall act as and perform the functions of the Attorney General with respect to any matters from which I have recused myself to the extent they exist." Rod J. Rosenstein was sworn in as Deputy Attorney General and, "invoking "the authority vested in me as Acting Attorney General, including 28 U.S.C. §§ 509, 510, and 515," General Rosenstein appointed Robert S. Mueller, III, to serve as Special Counsel. Special Counsel Mueller issued multiple grand jury subpoenas requiring Andrew Miller to produce documents and to appear before the grand jury. Miller challenges the authority of Special Counsel Mueller on the grounds that his appointment is unlawful under the Appointments Clause because: the Special Counsel is a principal officer who was not appointed by the President with the advice and consent of the Senate.
Was the appointment of Special Counsel Mueller as special counsel valid?
The Appointments Clause distinguishes between "principal officers," who must be nominated by the President with advice and consent of the Senate, and "inferior officers," who may be appointed by the President alone, or by heads of departments, or by the judiciary, as Congress allows. An inferior officer is one "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." The Attorney General, an officer appointed by the President with the advice and consent of the Senate, has authority to rescind at any time the Office of Special Counsel regulations or otherwise render them inapplicable to the Special Counsel. The question whether Congress has "by law" vested appointment of Special Counsel Mueller in the Attorney General has already been decided by the Supreme Court. In United States v. Nixon, 418 U.S. 683, 694, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court stated: "[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533." In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon.
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