What does the change at the Department of Justice have to do with Robert Mueller’s legal predicate to prosecute cases in federal court? Nothing at all … I think. Nevertheless, the DC Circuit judges handling the appeal by a Roger Stone associate challenging Mueller’s status have ordered briefs by both sides to cover the forced resignation of Jeff Sessions as Attorney General, so the court has at least some curiosity on the topic:
A federal appellate court panel on Friday ordered Robert Mueller as well as attorneys trying to knock the special counsel out of his job to file new legal briefs that explain how this week’s shakeup atop the Justice Department could influence their case.
In a one-paragraph order, the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit told Mueller and lawyers for a former aide to Roger Stone that they have until Nov. 19 to turn in briefs that sift through Wednesday’s firing of Attorney General Jeff Sessions and the legal reaction it may have created. …
The Whitaker-Sessions shakeup came up briefly Thursday during oral arguments in the D.C. Circuit courtroom as it considered the case between Mueller and Andrew Miller, the former Stone aide who is challenging the special counsel’s appointment on constitutional grounds.
There, Judge Karen Henderson said the judges would set aside Sessions’ departure for the hearing but likely would ask for supplemental briefing to address the legal issues tied to the handover from Rosenstein to Whitaker.
Remember that the issue in this challenge had little to do with Jeff Sessions. Andrew Miller found himself in contempt of court in August for refusing to comply with a subpoena from the special counsel office after arguing that Mueller lacked standing to issue one. Miller is challenging the ruling from Judge Beryl Howell that Mueller is duly authorized to issue subpoenas in his role as special counsel, an argument which touches on the same issues emerging over Matt Whitaker’s temporary appointment as acting AG — whether a principal officer requires specific Senate confirmation.
Howell wrote that Mueller isn’t a principal officer, because he reports to a Senate-confirmed principal officer, or in this case a Senate-confirmed deputy to the principal officer:
The witness argues that the Special Counsel is a principal officer who must be, but was not, nominated by the President and confirmed by the Senate. Witness’s Mot. at 14. In the alternative, the witness contends that if the Special Counsel is an inferior officer, Congress did not “by Law” vest his appointment in the Attorney General. Id.at 8. Finally, the witness posits, even if Congress statutorily authorized theSpecial Counsel’s appointment, the DAG did not validly appoint him, as the Attorney General’s recusal did not allow the DAG to serve as Acting Attorney General. …
The primary criterion to determine principal-inferior officer status is whether an officer “is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Id. at 663. Edmond “emphasized three factors” in applying this standard: whether an officer is (1) “subject to the substantial supervision and oversight of” another Executive officer who is, or is “subordinate” to, a principal officer; (2) “removable . . . without cause;” and (3) subject to “another executive branch entity’s . . . power to reverse the [officer’s] decisions,” such that the officer has “‘no power to render a final decision on behalf of the United States unless permitted to do so by other Executive Officers.’” …
As explained in further detail below, governing statutes give the Acting Attorney General broad authority to direct and supervise the Special Counsel. The Acting Attorney General has delegated and can rescind all authority the Special Counsel enjoys, see 28 U.S.C. §§ 509, 510, 515(a); Appointment Order ¶¶ (b), (c), thus enabling the Acting Attorney General to oversee the Special Counsel’s work and countermand the Special Counsel’s actions. Moreover, no statute limits the Attorney General’s authority to remove a Special Counsel. The Special Counsel thus satisfies Edmond’s “direction and supervision” test for inferior officer status. The regulations, being rescindable at will, do not alter this conclusion, and if anything serve to emphasize the breadth of the Attorney General’s powers of direction and supervision. The Special Counsel is therefore an inferior officer.
All of this worked well as long as the Attorney General was confirmed to the position by the Senate, which was the case until, oh … Wednesday. This part of Howell’s original ruling might indicate that Whitaker’s ascension into that role without specific Senate confirmation opens the door to delegitimizing Mueller through no fault of his own, emphasis mine:
Indeed, Edmond held that an officer with a presidentially-nominated, Senate-confirmed superior is inferior even if all three other Morrison factors—the magnitude of an officer’s duties, jurisdiction, and tenure—weigh toward principal officer status. 520 U.S. at 661–62 (concluding that a Coast Guard Court of Criminal Appeals judge was an inferior officer despite that “the last two [Morrison factors—limited jurisdiction and tenure] do not hold . . . here” and that such judges “are charged with exercising significant authority on behalf of the United States”).
Does Rod Rosenstein qualify as such without Sessions in place? He might have if he’d been elevated to a position where he reported directly to Trump. However, Howell ruled that Miller failed to sustain an argument that a deputy AG is itself a “principal officer,” an argument for equating the status of Mueller with that of Rosenstein:
The witness alludes to “centuries of practice [of] treating Deputy and Assistant Cabinet Secretaries as Princip[al] officers,” Witness’s Reply at 19, but fails to support this assertion with any authority. 28 The witness argues that “it seems obvious that” officers such as the DAG, the Solicitor General, the Assistant Attorneys General, and non-interim U.S. Attorneys are principal officers “notwithstanding the hierarchical superiority of the Attorney General,” given the “great power” they wield. Id. This litigation presents no need to determine whether any of these officers are principal or inferior, as the Attorney General’s power to remove a Special Counsel gives the Attorney General greater direction and supervision over a Special Counsel than over any of these officers. See supra Part III.B.1.a. 29
The witness claims that some officers are so important that they “need to be principal officers and subject to scrutiny at appointment, Senate advice and approval, and impeachment.” Witness’s Mot. at 14. Congress, however, is free to subject inferior officers’ appointments to the advice-and-consent process—this, indeed, is “the default manner of appointment for inferior officers.”
If Rosenstein isn’t the acting AG, then he’s not a principal officer. If the court rules that Whitaker doesn’t qualify under the Vacancies Reform Act to ascend to the role of principal officer, then, at least technically, Mueller’s shorn of his legal authority to compel testimony and prosecute cases until a Senate-confirmed person assumes Session’s authority, either temporarily or permanently. Or at least that’s what Miller is likely to argue.
Will it work? If it does, expect holy hell to break out in Congress, perhaps even among some Republicans who might be wondering why Trump didn’t just make Solicitor General Noel Francisco acting AG instead. Perhaps the court will be convinced that Whitaker’s confirmation in 2004 as US Attorney satisfies the requirement — but if they did, as Allahpundit pointed out earlier, then they should have been satisfied of Mueller’s standing based on his own Senate confirmation as FBI director in 2001.