Was Mueller’s appointment unconstitutional after all?

The president, who might not be fully acquainted with the pertinent Supreme Court case law, says the appointment of Robert Mueller as special counsel was unconstitutional. The president’s opinion, because it is his, is prima facie evidence for the opposite conclusion. It is, however, not sufficient evidence. Consider the debate between two serious people who have immersed themselves in the history of the Appointments Clause, which says:

“[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 offi- cers 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.”

The debate turns on the distinction the Supreme Court has drawn between “inferior” and “principal” officers. If Mueller is among the latter, his appointment was invalid because he was neither nominated by the president — he was appointed by Deputy Attorney General Rod Rosenstein — nor confirmed by the Senate. Steven G. Calabresi, professor at Northwestern University Law School and co-founder of the Federalist Society, argues as follows:

By “long-standing practice,” Congress and the executive branch give principal-officer status to all “important and powerful” officials, even those who have a boss who can fire them. In 1976, the Supreme Court invalidated the law that created the Federal Election Commission to be composed of two members nominated by the president, two by the speaker of the House and two by the president pro tempore of the Senate. The court held that all six must be nominated by the president as principal officers. Mueller, says Calabresi, is much more important and powerful than an FEC member. Congress has stipulated that the 93 U.S. attorneys are principal officers, and Mueller has, Calabresi says, “acted and has behaved like,” and is “much more powerful than,” any U.S. attorney.

Furthermore, Calabresi says Mueller cannot be an inferior officer because “Congress has not, by law vested in the attorney general, the power to appoint special counsels to investigate wrongdoing” by high officials. The Appointments Clause creates a “default rule” that all U.S. officers are principal officers and it takes an “affirmative action” — a statute — to empower the attorney general to appoint a special counsel as an inferior officer, which Congress has not passed. The 1978 law that vested in a special court the power to appoint independent counsels expired in 1999.

Writing in vigorous rebuttal, George Conway, a New York lawyer (whose wife Kellyanne works for the president who hopes Calabresi is correct), argues that Calabresi incorrectly asserts that Mueller must be a principal officer because he does not have a supervising and directing boss. Conway says:

Rosenstein has testified to Congress that he is “exercising my oversight responsibilities” concerning Mueller, with whom he has “ongoing discussion,” who “consults with me” about his investigation, and who has “received my permission” regarding the scope of the investigation.