IN RE: GRAND JURY INVESTIGATION
No. 18-3052
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2018 Decided February 26, 2019
Appeal from the United States District Court for the District of Columbia (No. 1:18-gj-00034)
James C. Martin argued the cause for amicus curiae Concord Management and Consulting LLC in support of appellant. With him on the briefs were Colin E. Wrabley, Eric A. Dubelier, and Katherine J. Seikaly.
Montgomery Blair Sibley was on the brief for amicus curiae Montgomery Blair Sibley in support of appellant.
Michael R. Dreeben, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Robert S. Mueller, III, Special Counsel, and Jeannie S. Rhee and Adam C. Jed, Attorneys.
Elizabeth B. Wydra and Ashwin P. Phatak were on the brief for amici curiae Constitutional and Administrative Law Scholars in support of appellee.
Opinion for the court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Andrew Miller appeals an order holding him in contempt for failing to comply with grand jury subpoenas served on him by Special Counsel Robert S. Mueller, III. He contends the Special Counsel‘s appointment is unlawful under the Appointments Clause of the Constitution, and therefore the contempt order should be reversed. We affirm.
I.
The relevant statutory and regulatory authority relating to the context in which this appeal arises are as follows.
A.
The Attorney General is the head of the Department of Justice (“the Department“).
At various times, independent counsels within the Department have conducted investigations and instituted criminal prosecutions pursuant to the Ethics in Government Act of 1978 (“the Act“). The Act authorized the appointment of an independent counsel upon a referral of a matter by the Attorney General to a three-judge court that could name an independent counsel. See
Under Department regulations, the Attorney General establishes the Special Counsel‘s jurisdiction and determines whether additional jurisdiction is necessary to resolve the assigned matter or matters.
The regulations also address discipline, removal, and the resources for the Special Counsel‘s investigation. The Attorney General has authority to discipline and to remove a Special Counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
B.
The circumstances giving rise to this appeal began on March 2, 2017, when then-Attorney General Jeff Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Press Release No. 17-237, U.S. Dep‘t of Justice, Attorney General Sessions Statement on Recusal (Mar. 2, 2017). Department regulations provide that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship” with any person “involved in the conduct that is the subject of the investigation or prosecution.”
On April 26, 2017, Rod J. Rosenstein was sworn in as Deputy Attorney General. By Appointment Order of May 17, 2017, invoking “the authority vested in me as Acting Attorney General, including
Approximately one year later, Special Counsel Mueller issued multiple grand jury subpoenas requiring Andrew Miller to produce documents and to appear before the grand jury. After Miller failed to appear, the Special Counsel moved to compel his testimony and for an order to show cause why Miller should not be held in civil contempt for failure to appear
II.
On appeal, Miller challenges the authority of Special Counsel Mueller on the grounds that his appointment is unlawful under the Appointments Clause because: (1) the Special Counsel is a principal officer who was not appointed by the President with the advice and consent of the Senate; (2) Congress did not “by law” authorize the Special Counsel‘s appointment; and (3) the Special Counsel was not appointed by a “Head of Department” because the Attorney General‘s recusal from the subject matter of the Special Counsel‘s investigation did not make the Deputy Attorney General the Acting Attorney General. This court‘s review is de novo. See Recording Indus. Ass‘n of America v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1233 (D.C. Cir. 2003).
The Appointments Clause in Article II states:
[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.
A.
As interpreted by the Supreme Court, the Appointments Clause distinguishes between “principal officers,” who must be nominated by the President with advice and consent of the Senate, and “inferior officers,” who may be appointed by the President alone, or by heads of departments, or by the judiciary, as Congress allows. Morrison v. Olson, 487 U.S. 654, 670-71 (1988) (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)). Thus, if Special Counsel Mueller is a principal officer, his appointment was in violation of the Appointments Clause because he was not appointed by the President with advice and consent of the Senate. Binding precedent instructs that Special Counsel Mueller is an inferior officer under the Appointments Clause.
An inferior officer is one “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997). In Edmond, the Supreme Court applied three factors to determine whether an officer was inferior: degree of oversight, final decision-making authority, and removability. Id. at 663-66. According to Miller, those considerations point to Special Counsel Mueller being a principal, rather than inferior, officer because the Office of Special Counsel regulations impose various limitations on the Attorney General‘s ability to exercise effective oversight of the Special Counsel. But as foreshadowed in this court‘s opinion in In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), a supervisor‘s ability to rescind
The Attorney General, an officer appointed by the President with the advice and consent of the Senate, has authority to rescind at any time the Office of Special Counsel regulations or otherwise render them inapplicable to the Special Counsel. Unlike the independent counsel in Morrison, 487 U.S. at 660-64, whose independence and tenure protection were secured by Title VI of the Ethics in Government Act, Special Counsel Mueller is subject to greater executive oversight because the limitations on the Attorney General‘s oversight and removal powers are in regulations that the Attorney General can revise or repeal, see
In either event, Special Counsel Mueller effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate. See
B.
The question whether Congress has “by law” vested appointment of Special Counsel Mueller in the Attorney General has already been decided by the Supreme Court. In United States v. Nixon, 418 U.S. 683, 694 (1974), the Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties.
Miller contends, unpersuasively, that the quoted sentence in Nixon, 418 U.S. at 694, is dictum because the issue whether the Attorney General had statutory authority to appoint a special prosecutor was not directly presented and the Supreme Court did not analyze the text of the specific statutes. It is true that a statement not necessary to a court‘s holding is dictum. See City of Okla. City v. Tuttle, 471 U.S. 808, 842 (1985); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); Martello v. Hawley, 300 F.2d 721, 722-23 (D.C. Cir. 1962). But Miller misreads Nixon, for the Supreme Court was presented with the question whether a justiciable controversy existed. When the Special Prosecutor issued a subpoena to the President to produce certain recordings and documents, the President moved to quash the subpoena, asserting a claim of executive privilege, id. at 688, and maintained the claim was
Furthermore, in Sealed Case, 829 F.2d at 52-53, this court recognized that the statutory scheme creating the Department vests authority in the Attorney General to appoint inferior officers to investigate and to prosecute matters with a level of independence. There, the Attorney General appointed an independent counsel and promulgated regulations to create an office to investigate whether Lieutenant Colonel Oliver L. North and other officials violated federal criminal law in connection with the shipment or sale of military arms to Iran and the transfer or diversion of funds connected to any sales (referred to as the Iran/Contra matter). The Attorney General also authorized the independent counsel to prosecute any violations of federal criminal laws uncovered during investigation of the Iran/Contra matter. Id. at 52. North refused to comply with a grand jury subpoena, arguing that the independent counsel‘s appointment was invalid. Id. at 54-55. This court disagreed:
We have no difficulty concluding that the Attorney General possessed the statutory authority to create the Office of Independent Counsel: Iran/Contra and to convey to it the “investigative and prosecutorial functions and powers” described in the regulation. . . . While [
5 U.S.C. § 301 and28 U.S.C. §§ 509 ,510 , and515 ] do not explicitly authorize the Attorney General to create an Office of Independent Counsel virtually free of ongoing supervision, we read them as accommodating the delegation at issue here.
The issue before the court was whether the independent counsel was authorized to investigate and to prosecute officials in regard to the Iran/Contra matter. As such, the Attorney General‘s authority to appoint an independent counsel was antecedent to deciding whether the Attorney General validly delegated authority to the independent counsel. The court‘s quoted statements regarding the Attorney General‘s statutory authority to appoint an independent counsel are, therefore, not dicta as Miller suggests.
To the extent Miller incorporates arguments of Amicus Curiae Concord Management, he maintains that in Sealed Case this court held only that the Attorney General had authority to delegate powers to an already appointed position inside the Department, not authority to appoint a new special counsel outside of the Department. The court expressly noted that the statutory scheme authorized the Attorney General to delegate powers to “others within the Department of Justice.” Id. at 55 n.29. Miller is correct that in that case, the independent counsel had two parallel appointments: one from the Attorney General to the Office of Independent Counsel: Iran/Contra and an earlier one from a Special Division under the Ethics in
Because binding precedent establishes that Congress has “by law” vested authority in the Attorney General to appoint the Special Counsel as an inferior officer, this court has no need to go further to identify the specific sources of this authority. See generally Grand Jury Investigation, 315 F. Supp. 3d at 651-58; see also
C.
The statutory and regulatory scheme demonstrate, contrary to Miller‘s contention, that at the time of Special Counsel Mueller‘s appointment, Acting Attorney General Rosenstein was the “Head of Department” under the Appointments Clause as to the matter on which the Attorney General was recused. The Attorney General is the head of the Department of Justice,
Miller‘s view that the Attorney General‘s recusal did not make the Deputy Attorney General the “Acting” Attorney General, and, therefore, the Deputy Attorney General lacked authority to appoint Special Counsel Mueller as an inferior officer, ignores the statutory scheme. Section 508(a) of Title 28 provides: “In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.” The word “disability” means the “inability to do something” or “lack of legal qualification to do a thing.” Webster‘s Third New International Dictionary 642 (1981). Congress is presumed to use words to have their ordinary meaning absent indication to the contrary. Russello v. United States, 464 U.S. 16, 21 (1983); Perrin v. United States, 444 U.S. 37, 42 (1979).
Miller would qualify Congress‘s meaning as limited to a “wholesale absence or disability, not a recusal to act on a single issue.” Appellant Br. 36-41. His interpretation is contrary to the structure Congress created for the Department whereby the Deputy Attorney General can carry on when the Attorney General is unable to act on a matter. A statute and Department regulation disqualify any officer or Department employee from participating in an investigation or prosecution that may involve “a personal, financial, or political conflict of interest, or the appearance thereof.”
Our understanding of Congress‘s use of the word “disability” in Section 508 accords with courts’ interpretations of Rule 25(a) of the Federal Rules of Criminal Procedure. Rule 25(a) provides that if a judge cannot proceed to preside at a trial due to “death, sickness, or other disability,” another judge may complete the trial. Courts have interpreted “disability” to include recusal. In re United States, 614 F.3d 661, 661 (7th Cir. 2010); United States v. Hall, 171 F.3d 1133, 1153 (8th Cir. 1999); United States v. Sartori, 730 F.2d 973, 976 (4th Cir. 1984); Bennett v. United States, 285 F.2d 567, 572 (5th Cir. 1960). The authorities Miller cites to support his interpretation—the Vacancies Act of 1868 and Moog Inc. v. United States, Misc. No. Civ-90-215E, 1991 WL 46518 (W.D.N.Y. Apr. 1, 1991)—provide no basis to conclude Congress intended a different meaning of “disability” in Section 508(a). In challenging the validity of the analogy on the basis that all federal judges have been appointed by the President with the advice and consent of the Senate,
Therefore, the Attorney General‘s single-issue recusal is a “disability” that created a vacancy that the Deputy Attorney General was eligible to fill. Miller points to no basis on which this court could conclude that Congress did not intend the term “disability” to have its ordinary meaning. See Russello, 464 U.S. at 21.
Still Miller maintains that Section 508 does not make the Deputy Attorney General an “acting” officer but only authorizes the Deputy Attorney General to perform the duties of the Attorney General‘s office and the Attorney General remains the “Head of Department” for Appointments Clause purposes. Congress has authorized the Deputy Attorney General to perform “all the duties of th[e] office” in case of a vacancy,
Because the Special Counsel is an inferior officer, and the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General as a result of a vacancy created by the disability of the Attorney General