Simone Lawson
The appointment of Robert Mueller by Rod Rosenstein as Special Counsel to oversee the investigation of Russian government efforts to influence the 2016 presidential election has been a subject of debate. While a federal appeals court upheld the validity of Mueller's appointment, some have questioned whether Rosenstein had the constitutional authority to appoint him. This is because Mueller is considered an inferior officer, and there are differing interpretations of whether Rosenstein, as the Acting Attorney General, had the power to appoint such an officer. Some argue that only the official head of the department or the president can appoint an inferior officer. Others contend that the Attorney General could not have delegated his appointment authority to Rosenstein if he was legally capable of making the appointment himself. Despite these challenges, Rosenstein maintained that he had the authority to appoint Mueller and that Mueller's role was limited to leading the investigation and related matters.
| Characteristics | Values |
|---|---|
| Constitutional authority | Unclear; some sources claim Rosenstein had the authority, while others disagree |
| Mueller's role | Special Counsel, former FBI Director |
| Appointed by | Deputy Attorney General Rod Rosenstein |
| Reason for appointment | To oversee the investigation into Russian government efforts to influence the 2016 presidential election and related matters |
| Nature of Mueller's appointment | Considered an "inferior officer" by some, but this is disputed |
| Legality of appointment | Challenged by Paul Manafort and Andrew Miller, associate of Roger Stone |
| Outcome of challenges | Federal appeals court ruled Mueller's appointment was valid |
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What You'll Learn
Did Congress authorise the Attorney General to appoint Mueller?
The appointment of Robert Mueller as a special counsel by Deputy Attorney General Rod Rosenstein has been challenged in court by Paul Manafort, Andrew Miller, and Roger Stone, associates of President Trump. Manafort and Miller argued that Mueller's appointment was unconstitutional, while Stone pleaded not guilty to charges of lying to conceal his efforts to learn about the release of hacked Democratic Party emails during the 2016 campaign.
The Appointments Clause states that "Congress may by Law vest the appointment of an inferior Officer in, inter alia, the 'Head[]' of a Department." In the case of Mueller's appointment, Congress did not create the position in question—the (Acting) Attorney General did. This raises doubts about whether it is a constitutional "office" under the Appointments Clause.
If it is indeed an office, and Congress has not "vested" the Attorney General with the authority to appoint someone to hold that office, the PAS default rule would apply, and Mueller's appointment would not be valid. This interpretation of the Appointments Clause leads to the question: has Congress authorized the Attorney General to hire someone from outside the Department of Justice to perform the investigatory and prosecutorial functions that Rosenstein hired Mueller for?
There are arguments that Congress has not authorized the Attorney General to appoint a Special Counsel such as Mueller. Additionally, it is argued that even if Congress has authorized the Attorney General to appoint Mueller, and even if Congress has authorized the Deputy Attorney General to perform the AG's functions, the Deputy AG is not the "Head" of the Department of Justice in this case. This is because Sessions's recusal did not create a "disability" that authorized Rosenstein to exercise the functions of the AG in the Russia investigation.
Despite these challenges, a federal appeals court in Washington unanimously affirmed the validity of Mueller's appointment, rejecting the challenges brought by Miller and Stone.
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Could Sessions, as Attorney General, delegate the appointment to Rosenstein?
There are conflicting opinions on whether Attorney General Jeff Sessions could have delegated the appointment of Robert Mueller to Rod Rosenstein.
Firstly, it is important to note that Mueller is considered an "inferior officer" and not a "constitutional office", as Congress did not create the position in question—the (Acting) Attorney General did. This means that the Attorney General could appoint someone to the position, as long as they were not legally disabled from making that decision.
In the case of Sessions, he recused himself from the decision-making process due to misleading remarks he made to the Senate Committee on the Judiciary during his confirmation process. This recusal is considered a disability that would authorize Rosenstein, as Deputy Attorney General, to exercise the functions of the Attorney General in the Russia investigation. However, some argue that Sessions' recusal did not create a "disability", and therefore, he could not delegate the appointment to Rosenstein.
Additionally, there is a question of whether Congress has authorized the Attorney General to appoint a Special Counsel such as Mueller. If Congress has not vested this authority in the Attorney General, then the PAS default rule would apply, and Mueller's appointment would not be proper.
Ultimately, a federal appeals court in Washington unanimously affirmed the validity of Mueller's appointment, rejecting a challenge brought by an associate of President Trump's adviser, Roger Stone. The court ruled that Mueller is an "inferior officer" and that Rosenstein had the authority to appoint him as Special Counsel after taking over supervision of the campaign-related issues following Sessions' recusal.
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Did Mueller exceed the authority Rosenstein gave him?
There were questions surrounding the constitutionality of Robert Mueller's appointment as special counsel by Rod Rosenstein, who was Acting Attorney General at the time. A federal appeals court in Washington unanimously affirmed the validity of Mueller's appointment, rejecting a challenge brought by an associate of Roger Stone, a longtime adviser to President Trump.
However, some sources argue that Mueller exceeded the authority granted to him by Rosenstein. Paul Manafort, for instance, filed a two-count suit against Rosenstein and Mueller, alleging that Mueller exceeded his authority by investigating and charging Manafort for alleged offenses that predated the 2016 Trump campaign. Manafort's complaint specifically alleged that Mueller exceeded his authority under the terms of Rosenstein's appointment letter, which authorized Mueller to investigate "any matters that arose or may arise directly from the investigation" into possible collusion between Trump's campaign and Russia during the 2016 election.
Rosenstein, however, concluded that the matters for which Manafort was charged did arise directly from the principal investigation. Furthermore, Asha Rangappa, an associate dean at Yale Law School and former FBI special agent, stated that there was no evidence that Mueller had veered outside the terms of his appointment. She also noted that even if Mueller came across something potentially criminal that was beyond his scope, he would have to hand it off to the FBI, rather than ignoring it.
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Was Mueller an inferior officer?
The constitutionality of Robert Mueller's appointment as a special counsel by Deputy Attorney General Rod Rosenstein has been the subject of much debate. A federal appeals court unanimously affirmed the validity of Mueller's appointment, rejecting a challenge brought by Andrew Miller, an associate of Roger Stone, who was an adviser to President Trump.
Miller's lawyer argued that Mueller's appointment was in violation of the appointments clause of the Constitution, given his broad prosecutorial powers and little oversight. He contended that Mueller should have been nominated by the president and confirmed by the Senate or appointed by the official head of the department.
The Appointments Clause states that "Congress may by Law vest the appointment of an inferior Officer in, inter alia, the 'Head[]' of a Department." This raises the question of whether Mueller is an inferior officer and whether the Attorney General, or in this case, the Deputy Attorney General, Rod Rosenstein, had the authority to appoint him.
Some, like Miller, argue that Mueller is a principal officer and should have been appointed by the president and confirmed by the Senate. However, others, like George Conway, counter that Mueller is an inferior officer, which means he can be appointed by the assistant attorney general or the relevant department head without Senate confirmation.
The court ruled that Mueller is an inferior officer, and once Rosenstein took over supervision of the campaign-related issues after Attorney General Jeff Sessions's recusal, he had the authority to appoint Mueller. This decision was based on the understanding that Mueller's position was temporary and created to accomplish a single task, which, according to Justice Kagan, does not constitute an "officer of the United States."
However, it is important to note that there are differing opinions on whether Mueller's position should be considered a constitutional "office" at all for the purposes of the Appointments Clause, as Congress did not create the position. Additionally, there are questions about whether the Attorney General has been authorized by Congress to appoint a Special Counsel and whether the Deputy Attorney General can make such an appointment if the Attorney General is recused from the investigation.
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Did the Attorney General have the authority to appoint an inferior officer?
The constitutionality of Robert Mueller's appointment as Special Counsel by Deputy Attorney General Rod Rosenstein was challenged in court by Andrew Miller, an associate of Roger Stone, who was an adviser to President Trump. The challenge was based on the appointments clause of the Constitution, which states that "Congress may by Law vest the appointment of an inferior Officer in, inter alia, the 'Head[]' of a Department."
Miller's argument was that Mueller, as a Special Counsel, was an inferior officer and that Congress had not authorized the Attorney General to appoint such an officer. He further argued that even if Congress had authorized the Attorney General to appoint Mueller, the Deputy Attorney General, Rod Rosenstein, was not the "Head" of the Department of Justice as Attorney General Jeff Sessions had not been legally required to recuse himself from the decision.
However, a federal appeals court in Washington unanimously affirmed the validity of Mueller's appointment, rejecting Miller's challenge. The court agreed with the special counsel's team, which argued that Mueller was an inferior officer properly appointed by Rosenstein, who had taken over supervision of the campaign-related issues after Sessions's recusal. The court's ruling stated that Mueller was an "inferior officer" and that Rosenstein had the authority to appoint him.
In conclusion, while there were legal challenges to the appointment of Robert Mueller as Special Counsel by Deputy Attorney General Rod Rosenstein, a federal appeals court upheld the appointment as valid, finding that Mueller was an inferior officer and that Rosenstein had the authority to appoint him.
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Frequently asked questions
A federal appeals court ruled that Robert Mueller's appointment was valid. However, there are still questions about the lawfulness of his appointment.
The challenge was based on the appointments clause of the Constitution. Mueller's broad prosecutorial powers with little oversight were cited as reasons why he should have been nominated by the president and confirmed by the Senate, or tapped by the official head of the department.
Rosenstein argued that the appointment was made "in the public interest" and to ensure the American people had "full confidence in the outcome" of the investigation. He also stated that Mueller would have "all appropriate resources to conduct a thorough and complete investigation".
Mueller's role was to lead the investigation into Russian government efforts to influence the 2016 presidential election and any related matters. This included investigating links and coordination between the Russian government and individuals associated with President Trump's campaign.
The court ruled that Mueller was an inferior officer, which means he could be removed by a higher-ranking official and had limited authority to investigate and prosecute specific federal crimes. This classification was important in determining the constitutionality of his appointment.
