916 F.3d 1047
D.C. Cir.2019Background
- Rod Rosenstein, acting as Acting Attorney General after Jeff Sessions’ recusal, appointed Robert S. Mueller III as Special Counsel under DOJ regulations to investigate Russian interference in the 2016 election and related matters.
- Mueller issued grand jury subpoenas to Andrew Miller seeking documents and testimony; Miller refused to comply.
- Miller moved to quash the subpoenas and argued Mueller’s appointment violated the Appointments Clause.
- The district court denied the motion to quash and held Miller in civil contempt for failing to appear.
- Miller appealed, raising three Appointments Clause challenges: (1) Mueller is a principal officer requiring presidential nomination and Senate confirmation; (2) Congress did not by law vest appointment power in the Attorney General; and (3) Rosenstein was not a "Head of Department" because Sessions’ recusal did not make Rosenstein Acting Attorney General.
Issues
| Issue | Miller's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Special Counsel Mueller is a principal officer | Mueller is independent and not supervised sufficiently, so he is a principal officer | Mueller is supervised and removable by Senate-confirmed officers; thus an inferior officer | Mueller is an inferior officer (appointment valid as non-Article II principal) |
| Whether Congress vested appointment power "by Law" in the Attorney General | No clear statute authorizes Attorney General to appoint special counsel outside presidential appointment | Statutes and precedent vest authority in the Attorney General to appoint subordinate officers | Authority to appoint inferior officers is vested in the Attorney General (valid by law) |
| Whether the appointing official was a "Head of Department" | Sessions’ recusal did not create an Acting AG; Rosenstein lacked head-of-department status for Appointments Clause | 28 U.S.C. §508(a) makes the Deputy AG perform duties during the AG’s disability; recusal created such a disability, making Rosenstein Acting AG | Rosenstein was Acting Attorney General for this matter and thus a Head of Department for appointment purposes |
| Remedy for Appointments Clause challenge to subpoenas/contempt | Miller sought quashal and reversal of contempt | Government sought enforcement and upholding contempt | Court affirmed contempt order and rejected Appointment Clause challenge |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (upheld delegation to a special prosecutor and treated AG’s statutory authority to appoint subordinate officers as valid)
- Morrison v. Olson, 487 U.S. 654 (1988) (distinguishes principal vs. inferior officers and assesses supervisory control)
- Edmond v. United States, 520 U.S. 651 (1997) (tests for inferior officer status: oversight, final decisionmaking, removability)
- In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) (recognized AG authority to create and appoint independent counsel within DOJ regulatory framework)
- Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) (principles re: removal and executive control relevant to officer status)