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Opinion on the Constitutionality of Robert Mueller’s Appointment

By Steven G. Calabresi1

The appointment of Robert Mueller to be a Special Counsel to investigate whether President


Trump’s campaign illegally colluded with Russian agents in the 2016 presidential election
violates the Appointment Clause of the Constitution and is therefore unconstitutional. All actions
taken by Mueller since his appointment on May 17, 2017 are therefore null and void including
all of the indictments he has brought, all the searches he has conducted included his phone-
logging of Michael Cohen, and all plea arrangements he has entered into.

Robert Mueller has behaved like the 96 U.S. Attorneys who are principal officers of the United
States and who must be nominated by the President and confirmed by the Senate. He has not
behaved like an Assistant U.S. Attorney who is an inferior officer and who may be appointed by
a principal officer like Deputy Attorney General Rod Rosenstein. Robert Mueller’s appointment
is therefore unconstitutional under Chief Justice Rehnquist’s majority opinion in Morrison v.
Olson, 487 U.S. 654 (1988) because it take away “too much” executive power from the
President. It is unconstitutional under Justice Scalia’s dissent in Morrison because Mueller does
not have a boss who is supervising and directing what he is doing. Deputy Attorney General
Mueller has deliberately abstained from playing such a role.

This opinion will begin in Part I by analyzing the text of the Constitution to determine what the
Appointment Clause says about who may be principal and inferior officers of the United States.
It will then analyze the Supreme Court caselaw on this issue. It will conclude with a discussion
of the unconstitutionality of the Mueller appointment.

I.

The Appointments Clause of Article II reads as follows:


"[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."

1 Clayton J. & Henry R. Barber Professor, Northwestern Pritzker School of Law and co-author with Christopher S.
Yoo of The Unitary Executive: Presidential Power from Washington to Bush (2008). Copyrighted 2018 – all
rights reserved. This document can be cited and quoted without the author’s permission.

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U.S. Const., Art. II, § 2, cl. 2. The U.S. Supreme Court has vigilantly enforced the Appointments
Clause ever since its landmark opinion in Buckley v. Valeo, 424 U.S. 1 (1976) where it struck
down an act of Congress that provided that two members of the newly created Federal Election
Commission must be nominated by the President, two must be nominated by the Speaker of the
House of Representatives, and two must be nominated by the President Pro Tempore of the
Senate. The Supreme Court said that ALL six of the members of the Federal Election
Commission must be nominated by the President under the Appointments Clause. The Court
held that the Appointments Clause constituted a vital power of the President.

“[T]he Constitution for purposes of appointment . . . divides all its officers into two
classes." United States v. Germaine, 99 U. S. 508, 99 U. S. 509 (1879). As the Supreme Court
stated in Buckley v. Valeo, 424 U. S. 1, 424 U. S. 132 (1976):
"Principal officers are selected by the President with the advice and consent of the
Senate. Inferior officers Congress may allow to be appointed by the President alone, by
the heads of departments, or by the Judiciary."
It has been the longstanding practice of Congress and of the Executive Branch to give principal
officer status to all important and powerful public officials even if they have a boss who can fire
them. Thus, Cabinet Secretaries have always been treated as being principal officers even
though they can be fired by the president. Deputy and Assistant Cabinet Secretaries are also
principal officers even though they can be fired by the Cabinet Secretary they report to as well as
by the president because of the importance of the office they hold. It is unthinkable that, for
example, the Deputy Secretaries of State or of Defense or of the Justice Department could be
made an inferior officer. These officials simply exercise too much power to be denominated
inferior officers. They are instead principal officers who must be nominated by the President and
confirmed by the Senate.

Turning to the federal judiciary, we find that federal court of appeals judges and federal district
judges have always been treated as being principal officers even though their decisions could be
overruled by the Supreme Court. No one thinks or should think that Congress could vest in the
Supreme Court the power to appoint lower court judges as inferior officers. It is obvious that
lower federal court judges must be principal officers nominated by the President and confirmed
by the Senate.

With respect to federal prosecutors, Congress has specified that the 96 U.S. Attorneys are all
principal officers who must be nominated by the President and confirmed by the Senate. The
U.S. Attorneys can all appoint Assistant U.S. Attorneys who are inferior officers and who report
to them. For reasons I shall explain below, it is obvious that Robert Mueller is behaving much
more like a U.S. Attorney than he is behaving like an Assistant U.S. Attorney. Mueller has acted
and has behaved like a principal officer even though he was never nominated by the President
nor confirmed by the Senate. In fact, Mueller is much more powerful than is a U.S. Attorney
because he has nationwide jurisdiction and can indict foreign citizens and corporations without
clearance from main Justice as he did when he indicted more than a dozen Russian citizens and

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three Russian business entities. This action had a major effect on our foreign policy with Russia.
Mueller’s actual powers are greater than those of a U.S. Attorney and are akin to those of an
Assistant Attorney General. It is thus crystal clear that Mueller is a principal officer.

The text of the Appointments Clause and the use of the word “inferior” elsewhere in the
Constitution makes it clear that there are two prerequisites that must be met for someone to be an
inferior officer. First, one must have a boss who the inferior officer reports to who can direct or
fire the inferior officer. And, second, an office cannot be inferior if the officer exercises as much
power as is exercised by the 96 U.S. Attorneys, the Deputy and Assistant Cabinet secretaries, or
lower federal court judges. This second test, as to officer inferiority, is somewhat subjective in
close cases, but it is very real nonetheless. If a prosecutor has as much power as a U.S. Attorney,
he is by definition a principal officer of the United States who must be nominated by the
President and confirmed by the Senate.

II.

The Supreme Court’s caselaw makes it explicitly clear that there is a two part test, which must be
met before someone can be appointed as an inferior officer. The first part of the test is that the
officer must have a boss who he reports to, who is supervising his work, who can overrule his
decisions, and who can fire him at will. The second part of the test is that an inferior officer
cannot exercise so much power that they must be a principal officer nominated by the President
and confirmed by the Senate.

Justice Scalia admirably summarizes the history of the Appointments Clause in Edmond v.
United States, 520 U.S. 651 (1997). Justice Scalia said the following, in general, about the
Appointments Clause in Edmond v. United States:

“As we recognized in Buckley v. Valeo, 424 U.S. 1, 125 (1976), the Appointments Clause
of Article II is more than a matter of "etiquette or protocol"; it is among the significant
structural safeguards of the constitutional scheme. By vesting the President with the
exclusive power to select the principal (noninferior) officers of the United States, the
Appointments Clause prevents congressional encroachment upon the Executive and
Judicial Branches. See id., at 128-131; Weiss, supra, at 183-185 (Souter, J., concurring);
Freytag v. Commissioner, 501 U.S. 868, 904, and n. 4 (1991) (Scalia, J., concurring). This
disposition was also designed to assure a higher quality of appointments: the Framers
anticipated that the President would be less vulnerable to interest group pressure and
personal favoritism than would a collective body. "The sole and undivided responsibility
of one man will naturally beget a livelier sense of duty, and a more exact regard to
reputation." The Federalist No. 76, p. 387 (M. Beloff ed. 1987) (A. Hamilton); accord, 3
J. Story, Commentaries on the Constitution of the United States 374-375 (1833). The
President's power to select principal officers of the United States was not left unguarded,
however, as Article II further requires the "Advice and Consent of the Senate." This

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serves both to curb executive abuses of the appointment power, see 3 Story, at 376-377,
and "to promote a judicious choice of [persons] for filling the offices of the union," The
Federalist No. 76, at 386-387. By requiring the joint participation of the President and the
Senate, the Appointments Clause was designed to ensure public accountability for both
the making of a bad appointment and the rejection of a good one. Hamilton observed:
"The blame of a bad nomination would fall upon the president singly and absolutely. The
censure of rejecting a good one would lie entirely at the door of the senate; aggravated by
the consideration of their having counteracted the good intentions of the executive. If an
ill appointment should be made, the executive for nominating, and the senate for
approving, would participate, though in different degrees, in the opprobrium and
disgrace." Id., No. 77, at 392.
See also 3 Story, supra, at 375 ("If [the President] should . . . surrender the public
patronage into the hands of profligate men, or low adventurers, it will be impossible for
him long to retain public favur.")
It is thus clear that according to the Supreme Court, the Appointments Clause is an absolutely
critical feature of the separation of powers and of presidential power. I now turn to the first part
of the Supreme Court’s two part test as to officer inferiority. To be an inferior officer one must
have a boss.
A.
Justice Scalia explicitly says in Edmond v. United States that part of the test that must be met for
an officer to be an inferior officer is that one must have a principal officer boss “who is
direct[ing] and supervis[ing] at some level” the work that the inferior officer is doing. In
Edmond v. United States, Justice Scalia wrote into Supreme Court caselaw his dissenting opinion
in Morrison v. United States, but he did not overrule Morrison v. Olson’s Appointment Clause
holding that inferior officers could not exercise too much power. As Justice Scalia said in
Edmond:
“Our cases have not set forth an exclusive criterion for distinguishing between principal
and inferior officers for Appointment Clause purposes. Among the offices that we have
found to be inferior are that of a district court clerk, Ex parte Hennen, 13 Pet. 225, 258
(1839), an election supervisor, Ex parte Siebold, 100 U.S. 371, 397-398 (1880), a vice
consul charged temporarily with the duties of the consul, United States v. Eaton, 169 U.S.
331, 343 (1898), and a "United States commissioner" in district court proceedings, Go
Bart Importing Co. v. United States, 282 U.S. 344, 352-354 (1931). Most recently, in
Morrison v. Olson, 487 U.S. 654 (1988), we held that the independent counsel created by
provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 591-599, was an
inferior officer. In reaching that conclusion, we relied on several factors: that the
independent counsel was subject to removal by a higher officer (the Attorney General),
that she performed only limited duties, that her jurisdiction was narrow, and that her
tenure was limited. Id., at 671-672. ***

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“Generally speaking, the term "inferior officer" connotes a relationship with some higher
ranking officer or officers below the President: whether one is an "inferior" officer
depends on whether he has a superior. It is not enough that other officers may be
identified who formally maintain a higher rank, or possess responsibilities of a greater
magnitude. If that were the intention, the Constitution might have used the phrase "lesser
officer." Rather, in the context of a clause designed to preserve political accountability
relative to important government assignments, we think it evident that "inferior officers"
are officers 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.
This understanding of the Appointments Clause conforms with the views of the first
Congress. On July 27, 1789, Congress established the first executive department, the
Department of Foreign Affairs. In so doing, it expressly designated the Secretary of the
Department as a "principal officer," and his subordinate, the Chief Clerk of the
Department, as an "inferior officer” ***”
Deputy Attorney General Rod Rosenstein is by design not “supervising and directing” the work
that Robert Mueller is doing. Thus, Mueller is clearly not an inferior officer under Justice
Scalia’s test in Edmond v. United States.

Moreover, Justice David Souter concurred in Justice Scalia’s opinion in Edmund v. United States,
but with the following critical caveat:

Because the term "inferior officer" implies an official superior, one who has no superior
is not an inferior officer. This unexceptionable maxim will in some instances be
dispositive of status; it might, for example, lead to the conclusion that United States
district judges cannot be inferior officers, since the power of appellate review does not
extend to them personally, but is limited to their judgments.
It does not follow, however, that if one is subject to some supervision and control, one is
an inferior officer. Having a superior officer is necessary for inferior officer status, but
not sufficient to establish it. See, e. g., Morrison v. Olson, 487 U. S., at 654, 722 ("To be
sure, it is not a sufficient condition for 'inferior' officer status that one be subordinate to a
principal officer. Even an officer who is subordinate to a department head can be a
principal officer") (SCALIA, J., dissenting). Accordingly, in Morrison, the Court's
determination that the independent counsel was "to some degree 'inferior'" to the Attorney
General, see id., at 671, did not end the enquiry. The Court went on to weigh the duties,
jurisdiction, and tenure associated with the office, id., at 671-672, before concluding that
the independent counsel was an inferior officer. Thus, under Morrison, the Solicitor
General of the United States, for example, may well be a principal officer, despite his
statutory "inferiority" to the Attorney General. See, e. g., 28 U. S. C. § 505 (directing
Presidential appointment, with the advice and consent of the Senate, of a Solicitor
General to "assist the Attorney General in the performance of his duties"). The mere
existence of a "superior" officer is not dispositive.”

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Edmond v. United States thus did not overrule the inferior officer test of Morrison v. Olson, but
added to it the very important caveat that one could not be an inferior officer if one did not have
a boss. This leads me to the Morrison v. Olson test of officer inferiority.

B.

The second test for officer inferiority is the one laid out in Morrison v. Olson, which held a
statute could not interfere with the President’s executive power “too much” by giving executive
power to so-called inferior officers thus taking away the President’s nomination power.
Specifically, Chief Justice Rehnquist says in his opinion for the Court in Morrison v. Olson that
four factors must be satisfied before an officer can properly be deemed an inferior office. First,
they must be removable by a boss. Second they must perform only “certain, limited duties.”
Third, the officer must be limited in jurisdiction. And, fourth, the officer must be given a job
with a fixed ending point.

The second part of Chief Justice Rehnquist’s four part test is clearly violated by the Robert
Mueller appointment. Mueller is not:

“empowered *** to perform only certain, limited duties. [The] independent


counsel's role [here] is [not] restricted primarily to investigation and, if
appropriate, prosecution for certain federal crimes. Admittedly, [Deputy Attorney
General Rosenstein seems to have] delegate[ed] to [Mueller] "full power and
independent authority to exercise all investigative and prosecutorial functions and
powers of the Department of Justice," § 594(a), but this grant of authority does
not include any authority to formulate policy for the Government or the Executive
Branch, nor does it give appellant any administrative duties outside of those
necessary to operate her office. [Mueller must] comply to the extent possible with
the policies of the Department. § 594(f).”
Moreover the third part of Chief Justice Rehnquist’s four part test for officer inferiority in
Morrison v. Olson is also violated by the Mueller appointment. Rehnquist says that to be an
inferior office one’s “office [must be] limited in jurisdiction.” As I will explain below that was
true in Morrison v. Olson, but it is demonstrably not true with respect to Mueller’s appointment.
The Mueller appointment is not the appointment of an inferior office because it flunks parts two
and three of Chief Justice Rehnquist’s four part test. The Mueller appointment also violates the
final part of Chief Justice Rehnquist’s Morrison opinion because it interferes “too much” with
the President’s executive power.
The Roberts Supreme Court briefly revisited the two inferior officer appointment tests in Free
Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), 561 U.S. 477
(2010). In that case, Chief Justice Roberts wrote that:
“Our Constitution divided the “powers of the new Federal Government into three defined
categories: Legislative, Executive, and Judicial.” INS v. Chadha, 462 U.S. 919, 951

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(1983). Article II vests the power “[t]he executive Power … in a ‘President of the United
States of America’ who must “take Care the Laws be faithfully executed.” Art. II,
Section 1, cl. 1; id. Section 3. In light of “[t]he impossibility that one man should be able
to perform all the great business of the State”, the Constitution provides for executive
officers to “assist the supreme Magistrate in discharging the duties of his trust.” 30
Writings of George Washington 334 (J. Fitzpatrick ed. 1939).”
The Chief Justice concluded that the PCAOB officers in question were removable at will by the
Securities and Exchange Commission and that the SEC had other power to review the
commission’s work. In light of these two factors taken together, Chief Justice Roberts concluded
that the PCAOB commissioners satisfied the Edmond test of officer inferiority who were being
directed and supervised by a principal officer and were, in addition, unimportant officers who did
not need to be nominated by the President and confirmed by the Senate. The PCAOB Court did
not overrule or even address the Morrison v. Olson test of officer inferiority, which had been
briefed by the parties. Morrison v. Olson, as supplemented by Edmond, remains good law today
with respect to officer inferiority.
III.

Robert Mueller is not an inferior officer under Justice Scalia’s test of officer inferiority as set out
in Edmond v. United States and in Free Enterprise Fund v. PCAOB because Deputy Attorney
General Rod Rosenstein is not “supervising and directing” Mueller’s work but is rubber-
stamping it so that Mueller can be “independent”. For this reason, Mueller is in effect and in
practice exercising the powers of a principal officer even though he has not been nominated by
the President or confirmed by the Senate.
Moreover, Robert Mueller is also not an inferior officer under Chief Justice Rehnquist’s test in
his majority opinion in Morrison v. Olson. Two of the four reasons the Supreme Court gave for
finding Alexia Morrison to be an inferior officer in Morrison v. Olson were that: 1) she was
empowered to perform only certain limited duties and 2) she had limited jurisdiction. On the
facts of the case, Chief Justice Rehnquist concluded at the end of his opinion that the statute,
which authorized Morrison’s appointment, and which has since sun-setted out of existence, did
not interfere “too much” with presidential power to control the executive branch.
This conclusion is defensible on the facts of Morrison v. Olson. In that case, only one
government official – Ted Olsen – was prosecuted for one crime, which was the unlawful
withholding of documents from Congress. At the time the prosecution was brought, Ted Olson
had left public office and was a private citizen. This was a case where the Special Counsel was:
1) performing only certain limited duties and 2) had only limited jurisdiction. Accordingly, the
Supreme Court was probably right in concluding that on the facts of the Morrison case the
Special Counsel was not interfering “too much” on presidential power.
In Robert Mueller’s case, however, Mueller is investigating whether the sitting president of the
United States obstructed justice by firing Mueller’s longtime friend Jim Comey to conceal
collusion between the Trump campaign and Russia into the 2016 presidential election. Instead of

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pursuing only one person on a limited matter, Mueller has without any real supervision by
Deputy Attorney General Rod Rosenstein: 1) indicted Paul Manafort, Trump’s former campaign
manager on two counts of misconduct having nothing to do with collusion with Russia; 2)
indicted and accepted a plea bargain from Michael Flynn, Trump’s former National Security
Advisor, for the crime of lying to government officials – an offense which Comey is guilty of
and for which he has not been prosecuted; 3) obtained a similarly dubious plea bargain with
former Trump campaign official George Papadopoulos; 4) indicted 13 Russian citizens and three
Russian business entities – a decision, which has major foreign policy consequences; 5)
prosecuted Richard Pinedo and Dutch attorney Alex van der Zwaan; 6) subpoenaed numerous
additional people; 7) wiretapped telephone calls covered by Attorney-client privilege between
President Trump and his longtime personal lawyer Michael Cohen; and 8) referred information
illegally obtained a phone log of Cohen’s phone to the office of the U.S. Attorney for the
Southern District of New York for prosecution for among other things criminally abusing the
Attorney-client privilege.
Mueller’s investigation has made controlled leaks of information to the press designed to
embarrass the President and hinder him in the performance of his duties, and his investigation
has dominated the headlines for one year now distracting President Trump from performing his
job and making Mueller far more powerful and well-known than are any of the 96 U.S. Attorneys
all of who are principal officers nominated by the President and confirmed by the Senate. Unlike
the officers in Edmond v. United States or in Free Enterprise Fund v. PCAOB, Robert Mueller’s
work is not being “supervised and directed” by principal officer Rod Rosenstein who has treated
Mueller as if he was “independent”. Moreover, unlike the Morrison v. Olson investigation, this
investigation is not limited in scope or in jurisdiction. To the contrary, Mueller’s investigation is
breathtaking in scope, his indictment of Russian citizens and business entities interferes with
President Trump’s ability to control foreign policy with Russia, and his breach of Attorney-client
privilege is a threat to civil liberties unlike any that has been attempted in this country since
Senator Joe McCarthy’s red scares.
There is no question at all that Robert Mueller has behaved over the past year as if he were a
principal officer of the United States even though he has never been nominated by the President
or confirmed by the Senate. He is best analogized to an Assistant Attorney General or a U.S.
Attorney and not to an Assistant U.S. Attorney or a special assistant to Rosenstein. Thus, even
though Mueller has a boss in Deputy Attorney General Rod Rosenstein, he is not an inferior
officer in any meaningful way. Mueller is, in fact, more powerful than are any of the 96 U.S.
Attorneys because he has nationwide jurisdiction and has indicted more than a dozen Russian
citizens and three Russian business entities. He is thus more akin to an Assistant Attorney
General than to even a U.S. Attorney. The Assistant Attorneys General have always been treated
as being principle officers who must be nominated by the President and confirmed by the Senate.
It follows afortiori that Mueller is a principal officer and that his appointment is unconstitutional
because Mueller was not nominated by the President and confirmed by the Senate.
I should add that while Deputy Attorney General Rod Rosenstein is a principal officer and could
take the actions Mueller took, he cannot delegate his principal officer status to Mueller any more
than Donald Trump could delegate his power to veto legislation or his Commander-in-Chief

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power to Mueller. The Constitution itself assigns the veto power to the President and the
principal officer power to Rosenstein, and it is unconstitutional for either of them to give their
constitutional powers to some civilian third party.
The Mueller investigation is unconstitutional. This means the indictments he brought are null
and void; the subpoenas he has issued are null and void; the wiretaps he has engaged in were and
are unconstitutional; and his referral of information to the U.S. Attorney for the Southern District
of New York is unconstitutional because any information he obtained is the fruit of a poisonous
tree. The Michael Cohen searches and investigation are thus unconstitutional as are all the other
searches and investigations of Michael Cohen’s associates, which are being conducted in the
Southern District of New York. They all stem from Mueller’s unconstitutional appointment, and
they are all thus the fruit of a poisonous tree.