Ed touched on this in his last post but I want to spend some time with it. Trump skeptics are laughing at him for making this point at his presser this morning. After all, Mueller is a mere special counsel whereas Matt Whitaker is momentarily the acting head of the U.S. Department of Justice. We can debate whether Mueller is a “principal officer” for purposes of the Appointments Clause but there’s no debate over whether the position of Attorney General is. Some Trumpers, in fact, have argued that Mueller is serving unconstitutionally precisely because he was never confirmed by the Senate, as U.S. Attorneys typically are. (By law, the special counsel position is equivalent to the role of U.S. Attorney.)
Turn the argument around: If you think Mueller should have been confirmed by the Senate, why don’t you think a guy who can statutorily serve for the next seven months as the most powerful law-enforcement official in the country be subject to confirmation too?
I think Trump has more ground to stand on in with this point than other Trump critics do, though.
President Trump: “Mueller was not Senate confirmed. Why didn't they get him Senate confirmed? He should have been Senate confirmed." pic.twitter.com/VdQTTccoPI
— CSPAN (@cspan) November 9, 2018
He’s wrong, by the way, in contrasting Whitaker with Mueller by noting that the former has been confirmed by the Senate before — in 2004, as a U.S. Attorney. Mueller was confirmed too, as head of the FBI in 2001. Why would a 14-year old confirmation “count” for purposes of a job as important as AG whereas a 17-year-old wouldn’t for a job like special counsel?
But never mind that. Not long ago an eminent conservative lawyer addressed exactly this argument, that Bob Mueller is allegedly a “principal officer” under the Constitution and therefore should have been confirmed by the Senate. That lawyer’s name? George Conway, a.k.a. “Mr. Kellyanne Conway,” as the president described him today. Conway’s the same person, of course, who co-wrote an op-ed for the NYT yesterday claiming that Whitaker’s appointment is unconstitutional unless and until he’s confirmed by the Senate. Does he feel the same way about Mueller’s appointment, you might wonder?
It is true that, typically, the 93 (not 96) U.S. attorneys are presidentially nominated and Senate-confirmed. But Congress has established an alternative method of appointment. Title 28 U.S.C. § 546 provides that, until the Senate confirms a presidential nominee, U.S. attorney vacancies can be filled for up to 120 days by an appointment made by the attorney general and then indefinitely by local district courts. Such non-presidential, non-Senate-confirmed appointees are, as one court of appeals has put it, “fully-empowered United States Attorneys, … not subordinates assuming the role of ‘Acting’ United States Attorney.” And such fully-empowered, non-presidentially-appointed U.S. attorneys are not all that uncommon. Today, the sitting United States attorneys in two of the most important judicial districts in the country—the Southern and Eastern Districts of New York—were appointed by the judges of those districts under Section 546(d).
And so “the Congress … by … vest[ing] the Appointment” of U.S. attorneys “in the Courts of law” and “in the Heads of Departments,” obviously recognized that U.S. attorneys are “inferior officers.” But Congress is not the only branch of the government to have reached this conclusion. In 1978, the question was expressly put to the Justice Department’s Office of Legal Counsel. OLC’s conclusion: U.S. attorneys are inferior officers, because the law “authorizes the Attorney General to direct all U.S. Attorneys in the discharge of their duties.”
Mueller’s office is much smaller than the average U.S. Attorney’s is as well, noted Conway. And unlike the Attorney General, who answers directly to the president, Mueller answers to a “principal officer” — the Attorney General or, per Jeff Sessions’s recusal, the deputy Attorney General in this case. If he works for a principal officer, then virtually by definition he must be an “inferior officer.” And inferior officers don’t need to be confirmed by the Senate, according to the Appointments Clause itself. So voila — no Senate confirmation needed for Mueller.
But back up. Why does Conway believe that the Constitution requires Matt Whitaker’s confirmation? That is, what’s so worrisome about letting the president appoint whoever he wants as his Attorney General without Senate consent? In Conway’s (and co-author Neil Katyal’s) words:
[T]he public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate…
Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.
The Appointments Clause is designed to prevent the president from appointing cronies to highly influential positions to do his bidding by guaranteeing some degree of Senate oversight. What does and doesn’t qualify as “highly influential” is a matter of dispute. But if the argument for Senate confirmation is strongest when the fear of influential cronyism is strongest, then surely we should want the Senate to ratify the appointment of a lawyer charged with investigating the president himself. Right? The average U.S. Attorney may be an “inferior officer” but a U.S. Attorney specifically charged with finding out whether the president conspired with a foreign power to win the presidency is no average U.S. Attorney. And it’s really no answer in this case to say “The Attorney General (or deputy Attorney General) provides oversight of the special counsel.” The AG is normally a political ally, if not an outright crony, of the president too. Allegedly the very first candidate to whom Trump offered the job of Attorney General after he won the election was Rudy Giuliani.
My argument feels silly in the specific case of Bob Mueller because, of course, Mueller is anything but a crony. Trump didn’t “game” the special-counsel appointment process in this case, and even if Mueller had been forced to submit to Senate confirmation there’s a near-zero chance that he would have been blocked. Remember, even Trump buddies like Newt Gingrich were celebrating his down-the-middle nonpartisan cred when he was first appointed. Rules, especially constitutional rules, don’t cease to matter just because they haven’t been abused in a particular case, though. Conway’s argument for treating a special counsel charged with investigating the president as an “inferior officer” who can be appointed without Senate consent is a recipe for disaster potentially. If you need a concrete example, imagine that Trump succeeds in getting Chris Christie to replace Sessions and then some new controversy develops over foreign interference in the 2020 election. POTUS turns around and names Giuliani (who will have ceased representing him in the Russiagate matter by that time) as the special counsel tasked with investigating. Should the Senate have a say in that, per Justice Thomas’s reading of the Appointments Clause? If you want to make this scenario even zestier, imagine Democrats hold a Senate majority at the time. How confident would Conway feel letting Trump and Christie supervise Rudy with no input from the opposition? About as confident as I feel, I’m guessing.
Update: The way to reconcile Conway’s position on Mueller and my position on Mueller, I think, is to note that the Appointments Clause doesn’t say that the president gets to appoint “inferior officers” and there’s nothing Congress can do about it. On the contrary, it says it’s up to Congress whether it wants to grant the president the power to appoint some “inferior officers” unilaterally. That is, you can believe that the special counsel is an “inferior officer” as a constitutional matter while also believing that Congress should not grant the executive exclusive power to appoint him. They should require Senate confirmation. It’s goofy not to if you’re worried about cronyism.