On May 17, 2017, acting Attorney General Attorney General Rod J. Rosenstein, (1) appointed former Federal Bureau of Investigation (FBI) Director Robert S. Mueller to be a special counsel for the United States Department of Justice. Mueller was ordered to investigate whether Donald Trump's 2016 presidential campaign illegally colluded with the government of Russia to influence the 2016 presidential election and to bring any appropriate prosecutions. (2) At the time of his appointment, Mr. Mueller was a private citizen not then employed by the Department of Justice. (3)
On March 22, 2019, nearly two years after his appointment, Mr. Mueller concluded his investigation and delivered a 488-page report to Attorney General William Ban. (4) The report did not charge or recommend charging anyone with a crime involving contact with Russian officials or agents because "[t]he investigation did not establish... an agreement to commit any substantive violation of federal criminal law--including foreign-influence and campaign-finance laws." (5) Nor did the investigation "yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal... subject to the direction or control of the government of Russia, or any official thereof." (6) The special counsel also investigated whether President Trump obstructed justice during the course of the investigation and "determined not to make a traditional prosecutorial judgment," and thus "did not draw ultimate conclusions about the President's conduct." (7) Attorney General Barr and Deputy Attorney General Rosenstein concluded that no prosecution for obstruction of justice was warranted. (8) With that, the Justice Department investigation was closed, leaving the aftermath to the political arena.
Or so one might think. But before closing up shop, Special Counsel Mueller empaneled a grand jury,(9) issued hundreds of subpoenas, (10) indicted at least thirty-three people and three companies, (11) secured seven guilty pleas, (12) and obtained convictions on eight counts in a criminal trial. (13) During its two years of operation, the special counsel's office performed numerous acts with formal legal consequences, and many of those acts continue to have serious effects even after the investigation ceased.
All of those legally consequential acts were and are unlawful.
Robert Muller's appointment to be a special counsel was unlawful on both statutory and constitutional grounds. Congress has not authorized by law the position of special counsel to which Mueller was appointed; Congress has not by law vested in the Attorney General the power to appoint inferior officer special counsels; and the office to which Mueller has been appointed is not, in any event, an inferior office but is instead an office to which appointment requires presidential nomination and confirmation by the Senate. Every legal act that Robert Mueller has taken since May 17, 2017, is therefore null and void. (14)
We reach this conclusion while recognizing that there are times when it makes sense to use special counsels with a reputation for independence and integrity to investigate presidential or other high-level wrongdoing. In these cases, there is often reason to doubt whether the political appointees of the Department of Justice could conduct investigations with at least the appearance of objectivity. The creation of a special counsel to investigate high-level wrongdoing is fine in principle and may, on occasion, be commendable in practice. But, there are lawful and unlawful ways to go about creating a special counsel. In this instance, quite unfortunately, acting Attorney General Rod Rosenstein acted unlawfully in appointing private citizen Robert Mueller to be a special counsel to investigate President Trump's alleged collusion with Russia. We begin by explaining where Rosenstein went wrong.
The constitutionally--and, under present law, statutorily--correct way to appoint a freestanding special counsel is to ask one of the ninety-three existing Senate-confirmed U.S. Attorneys to take on the germane task of investigating presidential or other high-level wrongdoing. Most U.S. Attorneys are career prosecutors whose political lies tend to be to their home-state senators and not to the President who nominated them. Many of them have exemplary reputations for independence and integrity, as well as years of prosecutorial experience, often working for both Democratic and Republican administrations. They are therefore Senate-confirmed officials of exemplary independence and integrity who are constitutionally and statutorily qualified to investigate the President of the United States or any other high-level governmental official or presidential friend.
Four U.S. Attorneys who served as special counsels or performed similar functions without the formal appointment or title in the last twenty years prove this point. On December 30, 2003, Patrick Fitzgerald, who was then the U.S. Attorney for the Northern District of Illinois, was lawfully appointed (15) by the then-acting Attorney General to investigate the Valerie Plame leak affair, which arose within the jurisdiction of the District of Columbia District Court. (16) Mr. Fitzgerald, who was a Senate-confirmed officer of the United States, prosecuted and secured the conviction of Vice President Richard Cheney's Chief of Staff, Scooter Libby, in the District of Columbia District Court. (17) Since Libby did not implicate Vice President Cheney, Mr. Fitzgerald's investigation stopped there. It should be added that Fitzgerald had a powerful reputation for independence and integrity, having indicted and secured the conviction for bribery of the sitting governor of Illinois. (18) Everyone had complete confidence in Fitzgerald's investigation.
Three other Senate-confirmed U.S. Attorneys, with reputations for independence like Mr. Fitzgerald's, have constitutionally been asked by the Attorney General to investigate high-level wrongdoing in recent years. The Senate-confirmed U.S. Attorney in Maryland, Rod Rosenstein (ironically), who had served under both Presidents Bush and Obama, was asked by President Obama's Attorney General, Eric Holder, to investigate and prosecute General James Cartwright, a former Vice Chairman of the Joint Chiefs of Staff, for leaking information to reporters. (19) General Cartwright pled guilty to this charge, (20) and he was later pardoned. (21) This is a second example of the special counsel system working as it should.
In November 2017, then-Attorney General Jeff Sessions asked the Senate-confirmed U.S. Attorney for Utah, John W. Huber, who had held office both under President Obama and President Trump, to investigate alleged wrongdoing by the FBI in the District of Columbia District Court's jurisdiction. (22) Mr. Huber took on this germane task, in addition to his duties as the U.S. Attorney for Utah. There is every reason to believe that U.S. Attorney Huber will conduct this investigation thoroughly and in a nonpartisan way.
Finally, at some point in the spring of 2019, Attorney General William Barr tasked John Durham, the U.S. Attorney for Connecticut, with investigating the origins of the Department of Justice's probes of the Trump campaign in 2016. (23)
All of these investigations and prosecutions of high-level wrongdoing were totally constitutional, legal, and appropriate, and they were (or are being) conducted by prosecutors of the highest degree of independence and integrity.
Our reading of the relevant statutes and the Appointments Clause would allow a future Attorney General to ask any of the existing Senate-confirmed U.S. Attorneys to serve as a special counsel or perform equivalent functions in a case of alleged presidential or other high-level wrongdoing. That arrangement is perfectly constitutional and statutorily authorized. Among that group one can surely find someone with the intellect, integrity, and character to be a special counsel as well as a United States Attorney. There are one hundred United States senators who play key roles in the selection of the (at present) ninety-three United States Attorneys, so there will always be some talented and independent-minded United States Attorneys who are not friends or acquaintances of the President who could be tapped to investigate the President. In fact, many United States Attorneys, such as John Huber and Rod Rosenstein, serve or have served both Democratic and Republican administrations.
What the Attorney General cannot lawfully do under the Constitution and current statutes, however, is pluck a private citizen like Robert Mueller out of retirement, create a putatively inferior office of special counsel to investigate the President for illegal collusion with Russia during the 2016 presidential campaign, and then appoint that private citizen to be a special counsel. First, such an action violates the current statutes enacted by Congress for the structure of the Department of Justice. Those statutes do authorize the appointment of counsels, but those counsels must "assist" (24) United States Attorneys. The office held by Mueller replaced rather than assisted United States Attorneys, and there is no legal authority for such an office. For years, the Department of Justice has mindlessly been relying on purported statutory authority for U.S. Attorney-replacing special counsels that simply does not exist. We will demonstrate this point in detail. (25)
Second, such an action violates the Appointments Clause, which provides:
[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...