George F. Will: Is Trump correct that Mueller's appointment was unconstitutional?
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. 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 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.”
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. 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. Compare, for example, Mueller’s job relative to that of the U.S. attorney for Wyoming. Mueller has “nationwide jurisdiction” and powers (e.g., to indict foreign citizens and corporations “without clearance from [the Justice Department]”) that have had “a major effect on” U.S. foreign policy, powers that “in effect and in practice” are “akin to” those exercised by an assistant attorney general, a principal officer. Mueller has been “without any real supervision” by Rosenstein, “who has treated Mueller as if he was ‘independent.’ ”
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.
Writing in vigorous rebuttal, George Conway, a New York lawyer (whose wife Kellyanne works for the president), 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. So Mueller, like an inferior officer, has “a boss” by whom he is “directed and supervised,” and whose “orders” Mueller is “faithfully following.”
The Supreme Court’s nine justices might eventually be dispositive. If Mueller’s appointment is challenged, and the case gets to the court, and five justices reason as Calabresi does, Mueller’s subpoenas, indictments and other acts will be null and void.
George F. Will is a columnist for The Washington Post. His email address is email@example.com.