The D.C. Circuit heard oral argument Thursday (Nov. 8) in a case that could throw into question the legitimacy of Robert Mueller’s investigation of Russian influence in the 2016 presidential election. A little-known political aide who received a subpoena from Mueller is challenging that subpoena—and, by extension, the investigation as a whole—by arguing that Mueller’s appointment as special counsel is unconstitutional.
Four U.S. district judges have ruled that Mueller’s appointment is valid, but no federal appeals court has considered the issue until now. The case is known as In re Grand Jury Investigation. Here is an overview of the case and some audio excerpts of the key moments from Thursday’s argument.
Background
The challenger to Mueller’s appointment is Andrew Miller, a former associate of political consultant Roger Stone. Mueller is investigating whether Stone conspired with Russian hackers during the election, and as part of that investigation, Mueller issued a subpoena to Miller requiring him to testify before Mueller’s grand jury. Miller refused to testify on the basis that Mueller’s appointment as special counsel violates the Constitution’s Appointments Clause, which sets forth different appointment requirements for different levels of federal officers. Put simply, “principal officers” must be appointed by the president and confirmed by the Senate, whereas “inferior officers” can bypass Senate confirmation and be appointed by the head of an agency if Congress passes an appropriate authorizing statute. Mueller, of course, was appointed as special counsel by Deputy Attorney General Rod Rosenstein and did not go through Senate confirmation.
In their briefs, Miller’s attorneys argued that Mueller’s prosecutorial powers are so extensive, and his supervision by the Justice Department is so minimal, that he qualifies as a principal officer and thus needed presidential appointment and Senate confirmation. Miller also argued that, even if Mueller is considered an inferior officer, there is no authorizing statute that allowed Rosenstein to appoint him.
Many constitutional scholars consider these arguments tenuous, particularly in light of Supreme Court and D.C. Circuit case law upholding other appointments in analogous circumstances. The Justice Department, defending Mueller’s appointment, argued in the briefs that Mueller’s investigation is subject to Justice Department oversight and that he qualifies as an inferior officer, not a principal one, under binding precedent. And they pointed to at least two federal statutes that they said authorized his appointment.
None of those arguments from President Trump’s own Justice Department have stopped the president from publicly agreeing with Miller:
The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!
— Donald J. Trump (@realDonaldTrump) June 4, 2018
President Trump criticizing Mueller now: “Mueller was not Senate confirmed. Why didn’t they get him Senate confirmed?” pic.twitter.com/wVTAFtfKWJ
— Eamon Javers (@EamonJavers) November 9, 2018
Even if Miller’s challenge is a long shot, the stakes are high because, if he succeeds, he could undermine the entire Mueller investigation. TheD.C. Circuit panel assigned to the case consists of Judges Henderson, Rogers, and Srinivasan. On Thursday, they heard oral argument for an hour and a half. Here’s what the judges and the arguing attorneys had to say.
‘The Events of Yesterday’
The first key moment came before the argument even began. Judge Henderson opened the proceedings with an unusual announcement: the attorneys should argue the case, for now, without regard to “the events of yesterday afternoon.” That was an obvious reference to the resignation, just a day earlier, of Attorney General Jeff Sessions and President Trump’s decision to name Matt Whitaker as acting attorney general.
The shakeup at the top of the Justice Department is important because one of the issues in the case is whether it was legal for Mueller to be appointed and supervised by Rosenstein, who is not the head of a department but was filling that role in the Russia investigation because Sessions recused himself. With Sessions now pushed out, Whitaker takes over supervision of Mueller—a prospect that raises separate legal problems of its own.
Here’s Henderson instructing the lawyers on how to handle the late-breaking news and suggesting the court may want supplemental briefing on the issue:
The next day, the court on its own motion indeed ordered further briefing about how Whitaker’s appointment affects the case. Those briefs are due Nov. 19.
Level of Supervision
When the argument began, Miller’s attorney, Paul Kamenar, quickly tried to frame Mueller as an unfettered “U.S. attorney at large” who is not subject to any meaningful supervision by the Justice Department under the department’s own regulations. Such unbridled power, he said, can be exercised only by a principal officer, requiring presidential appointment and Senate confirmation. Judge Rogers wanted to know if there is any evidence of how much day-to-day supervision the Justice Department is actually exercising over the Mueller investigation. And she expressed some skepticism of Kamenar’s position that the department’s regulations prohibit the sort of supervision that would be required for Mueller to qualify as an inferior officer:
‘At Will’ Removal vs. ‘Good Cause’ Removal
Kamenar also argued that a key way to distinguish principal officers from inferior officers is by looking at how they can be removed from office. Generally, he said, inferior officers can be removed for any reason at all. But the Justice Department regulations and the official order governing Mueller’s appointment say he can be fired only for “good cause.” That limitation on Mueller’s removal, Kamenar said, shows the Justice Department has limited ability to control him.
But the argument wasn’t working for Judge Srinivasan, who noted that the Justice Department, at least hypothetically, can revise the “good cause” regulation at any time and fire Mueller at will:
The Meaning of Edmond
Srinivasan then asked about Edmond v. United States, an important Supreme Court ruling from 1997 in which the court held that judges on the Coast Guard Court of Criminal Appeals were inferior officers, even though they operated without direct, day-to-day supervision of their activities. At the end of this exchange, Kamenar made a significant concession when he agreed with Srinivasan that it is possible to view the Mueller investigation as analogous to the facts in Edmond:
Authorization by Statute
After Kamenar sat down, the court heard from Concord Management and Consulting LLC, a Russian firm that has been indicted by Mueller and has, like Miller, challenged the legality of his appointment. The D.C. Circuit allowed Concord to participate on Miller’s side as an amicus.
Concord’s attorney, James Martin, told the judges there was no statutory authority for Rosenstein to appoint Mueller as special counsel. But he quickly ran into several Supreme Court and D.C. Circuit precedents that have interpreted federal statutes to authorize the appointment of “special attorneys” and other prosecutors similar to the special counsel here. Srinivasan, a former deputy solicitor general, got some courtroom laughs when he asked if Martin’s theory would invalidate all appointments of deputy solicitors general. Under Srinivasan’s questioning, Martin struggled to distinguish the Mueller appointment from the appointments of such deputies:
The Justice Department’s Response
The panel had fewer questions for Michael Dreeben, the Justice Department attorney defending the legality of Mueller’s appointment. Dreeben spoke uninterrupted for long stretches. He began by arguing that precedent from both the Supreme Court and the D.C. Circuit resolves the constitutional and statutory issues in this case in Mueller’s favor:
After highlighting the case law, Dreeben shifted to a more pragmatic defense of the special counsel’s office. His argument seemed to tacitly acknowledge the high political stakes in the case as he sought to assure the judges that the regulations governing the special counsel strike a delicate balance: providing enough independence for the special counsel to conduct a sound investigation free from political pressure, while guaranteeing some oversight to prevent him from becoming a rogue prosecutor. Here’s an exchange in which Dreeben and Srinivasan discussed that balance—as well as the government’s view about when the acting attorney general has the authority to overrule Mueller:
And here’s Dreeben implicitly defending Mueller’s integrity:
The fact that Dreeben’s ultimate boss, the president of the United States, has repeatedly questioned Mueller’s integrity was never mentioned.
