Alan Dershowitz: Time to fill the gaping hole in the Constitution
A federal judge's alarming reason for upholding the Mueller crusade
In its decision in In re Grand Jury Subpoena, the U.S. District Court for the District of Columbia, egged on by a power-crazy acting attorney general, reached two startling and alarming conclusions in order to uphold the legality of Robert Mueller's appointment as special counsel.
The matter involved concerns the Appointments Clause of Article II of the Constitution, 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 Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
First, the district court held that the attorney general has unbounded power to create inferior officers, not subject to Senate confirmation, who could replace the Senate-confirmed 92 permanent U.S. Attorneys, the twelve assistant attorneys general, the solicitor general, the associate attorney general, and the deputy attorney general in carrying out the powers of those offices.
This argument is just plain wrong as a matter of statutory interpretation. The text and structure of the statutes in Title 28 of the United States Code all show that special counsels can be hired either as non-officer employees, with appropriately limited duties, or as officers to "assist" United States Attorneys in their duties. The statutes do not authorize the hiring of special counsels who serve as stand-alone officers who can displace the officers whose appointments are specifically enumerated in Title 28.
In upholding the Robert Mueller appointment, the district court gave our Napoleonic acting attorney general plenary power to set up a shadow inferior officer Justice Department, thus evading the advice and consent function of the Senate. This threatens the civil liberties of all Americans and upends the concept of federalism. It should send chills down the necks of every senator who may soon face "a specially appointed inferior executive branch special counsel" to investigate criminal wrong-doing in the senator's home state.
Second, the district court wrongly held that one could infer power to hire inferior officer special counsels from vague "emanations and penumbras" in statutes that do not grant the Department of Justice the power to appoint officers. This violates the provision in the Appointments Clause requiring Congress to authorize "by law" the appointment of inferior officers by any means other than presidential appointment and senatorial confirmation. When Congress chooses to "by Law vest the Appointment of such inferior Officers, as they think proper ... in [the] Head of [a] Department," it always uses explicit statutory language. This point is shown by the language of the Administrative Procedure Act of 1946, a framework statute, when it lets the administrative agencies appoint administrative law judges. 5 U.S.C. § 3105 explicitly says: "Each agency shall appoint as many administrative law judges as are necessary for [hearing and deciding cases]."
The organic statutes of the departments of Agriculture, Education, Health and Human Services, and Transportation all contain clear appointment granting clauses, unlike the organic statutes creating the Justice Department in Title 28 of the U.S. Code.
In all of these cases, there is very clear, explicit, and unambiguous statutory language: "may appoint X officers"; is authorized "to appoint X officers"; or "may appoint officers." There is quite simply no such clear inferior officer appointing language in any of the existing Department of Justice statutes relied upon by the government and the District Court. All these statutes do is allow the attorney general to appoint a lawyer to assist a U.S. attorney, not to replace a U.S. attorney.
I believe there is only one way in which the attorney general can appoint a special counsel such as Robert Mueller. The attorney general can ask one of the 92 permanent U.S. attorneys, who are Senate confirmed superior officers, to conduct a germane, special, criminal investigation and prosecution outside of the geographical district to which they were appointed.
Patrick Fitzgerald was constitutionally asked in this manner to prosecute top White House Aide Scooter Libby in the U.S. District Court for the District of Columbia more than a decade ago - even though Fitzgerald was then the U.S. attorney for the Northern District of Illinois, nominated by the president and confirmed by the Senate. The task was germane to Fitzgerald's day job: Fitzgerald had been nominated by the president and confirmed by the Senate, so the appointment was constitutionally permissible.
What has happened with Mueller is very much not permissible for reasons related to civil liberties, constitutional liberties and the federalist separation of powers. The House and Senate Judiciary committees should both hold oversight hearings on the breathtaking claims of power that have been asserted by our Napoleonic acting attorney general.
Steven G. Calabresi is a co-author of "The Unitary Executive: Presidential Power from Washington to Bush" and the Clayton J. & Henry R. Barber Professor at Northwestern Pritzker School of Law.