George Conway, husband of counselor to the president Kellyanne Conway, for weeks has been tweeting criticism of President Trump and his lawyers’ attack on the special prosecutor Robert S. Mueller III and of their extravagant claims of executive power. He went one step further, drafting for Lawfare a biting critique of Trump’s and others’ claims that the special counsel’s appointment is somehow unconstitutional.
The argument that “Mueller’s appointment violates the Appointments Clause of the Constitution” seems to have come from Federalist Society co-founder and law professor Steven Calabresi, says Conway, but it is nonsensical nonetheless.
The Appointments Clause distinguishes between two classes of executive-branch “officers”—principal officers and inferior officers—and specifies how each may be appointed. As a general rule, the clause says that “Officers of the United States”—principal officers—must be nominated by the president and appointed “with the Advice and Consent of the Senate.” At the same time, however, the Appointments Clause allows for a more convenient selection method for “inferior officers”: It goes on to add, “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.”
Trump’s legal defenders claim Mueller is a principal officer like U.S. attorneys. Rubbish, responds Conway:
This assumption is just wrong—uncomplicatedly, flatly wrong. It is true that, typically, the 93 (not 96) U.S. attorneys are presidentially nominated and Senate-confirmed. But Congress has established an alternative method of appointment. Title 28 U.S.C. § 546 provides that, until the Senate confirms a presidential nominee, U.S. attorney vacancies can be filled for up to 120 days by an appointment made by the attorney general and then indefinitely by local district courts. Such non-presidential, non-Senate-confirmed appointees are, as one court of appeals has put it, “fully-empowered United States Attorneys, … not subordinates assuming the role of ‘Acting’ United States Attorney.” And such fully-empowered, non-presidentially-appointed U.S. attorneys are not all that uncommon. Today, the sitting United States attorneys in two of the most important judicial districts in the country—the Southern and Eastern Districts of New York—were appointed by the judges of those districts under Section 546(d).
Moreover, Mueller’s office — with only a few dozen lawyers and a narrow scope of work — is even more “inferior” than the average U.S. attorney’s office. The Southern District of New York alone has more than 200 lawyers working on issues ranging from terrorism to civil rights violations.
The argument that Mueller isn’t a principal officer because he has no supervisor is patently wrong, as Conway points out. (“Against this unsupported rhetoric, moreover, there is an actual public record—an extensive one—to cite and review. A record consisting of, among other things, the regulations that govern Mueller’s activities; the order under which he was appointed; the correspondence and sworn testimony of the principal officer, Acting Attorney General Rod Rosenstein, who appointed Mueller; as well as an actual court decision discussing the special counsel’s authority. All these materials make clear that Special Counsel Mueller is an inferior officer, appropriately supervised and directed by Rosenstein.”) In fact, a district court has already ruled on this point in the Paul Manafort trial, finding Mueller is supervised by Rosenstein.
Calabresi’s final argument is based on Supreme Court Justice Antonin Scalia’s dissent in Morrison v. Olson, in which the court upheld Congress’s creation of a independent counsel in the wake of Watergate. Conway notes that Scalia’s dissent is, “to my mind, one of the greatest dissents of all time,” but the case was about a completely different process and statute; moreover, the Supreme Court ruled 7-to-1 that the independent-counsel position was constitutional.
Conway concludes, “In short, there is no serious argument that Special Counsel Mueller’s appointment violates the Appointments Clause specifically or the separation of powers generally.” Trump’s tweets are those of a legal ignoramus, but what is Calabresi’s excuse? Remember the Federalist Society has gotten a front seat in appointment of judges but often has remained mute in the face of Trump’s attacks on democratic norms, on the courts and on law enforcement.
Conway puts it delicately: “Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.” I will put it more bluntly: Anyone who comes in contact with Trump soon wants to maintain his place at the table. To do so requires intellectual and moral corruption. The Federalist Society is no different. That’s a sad reflection of the state of the right and a loss for the country at a time when we need honest, rigorous legal counsel. We need a new organization to do that, given the Federalist Society’s intellectual decline. And that group will need a leader: I’ll nominate George Conway.