USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 1 of 109 [ORAL ARGUMENT NOT YET SCHEDULED] No. 18-3052 __________________________________________________________________ IN THE United States Court of Appeals for the District of Columbia Circuit __________________________________ IN RE: GRAND JURY INVESTIGAITON _________ ANDREW MILLER, v. Appellant, UNITED STATES OF AMERICA, Appellee. ________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________ APPENDIX __________________ PAUL D. KAMENAR 1629 K STREET, N.W. SUITE 300 WASHINGTON, DC 20006 (301) 257-9435 paul.kamenar@gmail.com Counsel for Appellant Andrew Miller Date: September 11, 2018 ______________________________________________________________ USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 2 of 109 APPENDIX TABLE OF CONTENTS District Court Docket Entries ............................................................ APPENDIX A August 10, 2018 ORDER OF CONTEMPT .................................... APPENDIX B JULY 31, 2018 MEMORANDUM OPINION ................................. APPENDIX C JULY 31, 2018, ORDER DENYING MOTION TO QUASH SUBPOENA ...................................................................................... APPENDIX D i USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 3 of 109 APPENDIX A District of Columbia live database lof?? USCA Case #18-3052 Uri-6455434593 Document #1750088 Filed: 09/12/2018 Page 4 of 109 APPEAL US. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE 1:18-gj-00034-BAI-l IN RE: GRAND JURY INVESTIGATION Assigned to: Chief Judge Beryl A. Howell Case in other court: USCA, 18-03052 Cause: Civil Miscellaneous Case In Re GRAND JURY INVESTIGATION Interested Pam UNITED STATES OF AMERICA Material Witness ANDREW MLLER represented by represented by Date Filed: 06f13K201 8 Nature of Suit: 890 Other Statutory Actions Jurisdiction: US. Government Plaintiff Aaron Simeha Jon Zelinsky DEPARTMENT OF JUSTICE Special Counsel?s Of?ce 950 Avenue Washington, DC 20004 (202) 616-0800 Email: asjz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE Jeannie Selafani Rhee US. DEPARTMENT OF JUSTICE Special Counsel?s Office 950 Avenue, NW Washington, DC 20530 (202) 616-0800 Email: jsr@usdoj . gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Alicia I. Dearn BELLATRIX PC 231 Berniston Avenue Suite 850, #56306 St. Louis, MO 63105 (314) 526-0040 Email: notices@bellatrixlaw.com LEAD ATTORNEY 9K612018. 4:15 PM District of Columbia live database USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 5 of 109 PRO HAC VICE ATTORNE 1? TO BE NOTICED Michael D.J. Eisenberg LAW OFFICES OF MICHAEL DJ. EISENBERG 200 12th Street, NW Suite 7'00 Washington, DC 20005 (202) 558-6371 Fax: (202) 403-3430 Email: miehael@eisenberg? lawof?oeeom LEAD ATTORNEY ATTORNEY TO BE NOTTCED Paul Douglas Kamenar LAW OFFICE OF PAUL D. KAMENAR 1629 Street, NW Suite 300 Washington, DC 20006 (202) 603-5397 Fax: {202) 588?0386 Email: paul.kamenar@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED 1 Date Filed Docket Text 06! 14,201 8 MINUTE ORDER (paperless) ISSUING, upon consideration of the government's Motion to Compel and for Order to Show Cause, the following SCHEDULING ORDER to control further proceedings: 1) by 5 pm. on Thursday, June 14, 2018, Andrew Miller shall ?le any response to the government's motion; (2) by 12 pm. on Friday, June 15, 2018, the govermnent shall ?le any replyMonday, June 18, 2018, the parties shall appear before Chief Judge Beryl A. Howell for a hearing on the government?s motion. The is DIRECTED to provide opposing counsel with a copy of this Order. Signed by Chief Judge Beryl A. Howell on June l3, 2018.(lcbahl) (Entered: 06X 14/2018) 06/14f2018 MINUTE ORDER (paperless) MODIFYING the scheduling order as follows: by 5 1 pm. today, Thursday, June 14, 2018, Andrew Miller shall file any response to the government's motion either (1) through the Clerk's Of?ce or (2) to and then through the Clerk?s Of?ce by 9:30 I am. on Friday, June 15, 2018. Should Mr. Miller submit his response via email, he 2 7 9162018, 4:15 PM District of Columbia live database 3of7 USCA Case #18?3052 0610 E02018 13 Filed: 09/12/2018 Document #1750088 Page 6 of 109 shall simultaneously provide the government a copy. The scheduling order . otherwise remains unchanged. Signed by Chief Judge Beryl A. Howell on June 14, 2013. (lcbahi (Entered: 06/14/2018) MINUTE ORDER (paperless) GRANTING the witness's 6 Motion for Admission Pro Hoe Vice. Ms. Alicia Dearn may enter an appearance pro hue vice for the purpose of representing the witness in this action. Signed by Chief Judge Beryl A. Howell on June 18, 2018. Counsel have NOT been notified. (lcbah4) (Entered: 3120] 3) I I 06/232018 I 06/222013 06/182013 06(18/201 8 I 06/28/2018 06f28r?201 8 2 1 MOTION to Quash THE GRAND JURY SUBPOENAS, MOTION to Stay Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Motion I Hearing held on 6(181?2018. Order forthcoming. (Court Reporter Elizabeth Saint- Loth.) (ztg) (Entered: 06H 8/2018) 1. MINUTE ORDER (paperless) GRANTING, upon consideration of the parties' ?lings, the hearing held on June 18, 2018, and the entire record herein, the govermnent's 1 Motion to Compel and for Order to Show Cause Why the Witness Should Not Be Held in Contempt for Failure to Appear before the Grand Jury as Required by Subpoena and 2 Supplemental Motion to Compe] and for Order to Show Cause, and DENYING AS MOOT the witness's 4 Motion to Quash, or, in the Alternative, Modify Grand Jury Subpoenas, in light of the government's I agreement in its 3 Reply Motion to Compel ("Gov't Reply") to ?limit the subpoena for documents to the search terms proposed by" the witness. Gov?t Reply at 1. Accordingly, the witness is DIRECTED to appear before the grand jury on June 29, 2018, unless the parties notify the Court of an alternate arrangement. The I witness is further DIRECTED, by 12:00 pm. on June 25, 2018, to perform the i searches as agreed to by the parties on the record and in their ?lings and produce i the results of those searches to the government. Signed by Chief Judge Beryl A. Howell on June 18, 2018. Counsel have NOT been notified. (lcbah4) (Entered: - 06/18/2013) COURTS JUNE 18, 2018, MINUTE ORDER, MOTION RELIEVE HIM FROM ANY FURTHER DUTY TO PRODUCE ADDITIONAL DOCUMENTS COVERED BY THE SUBPOENAS by ANDREW MILLER (Attachments: 1 Text of Proposed Order, 2 Text of Proposed Order)(zrdj) (Entered: 06/28f2018) MINUTE ORDER (paperless) DI RECTTN G, Upon consideration of the witness's Motion to Quash, the parties to confer and, by 5 PM today, June 28, 2018, propose a schedule to control further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on June 28, 2018. (lebahl) (Entered: 06f28f2018) MINUTE ORDER (paperless) DIRECTING the parties to appear, at 10:15 am. on Friday, June 29, 2018, before Chief Judge Beryl A. Howell in Courtroom 22. Signed by Chief Judge Beryl A. Howell on June 28, 2019. (lcbahl) (Entered: 0698/2013) (zrdj) (Entered: STATUS REPORT by UNITED STATES 06/291201 8) 9/16/2018, 4:15 PM District of Columbia live database I 3 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 7 of 109 06/29/2018 1 MINUTE ORDER (paperless) ISSUING, upon consideration of the govermnent?s 11 Status Report, the following scheduling order to govern further proceedings in this matter: (1) by July 10, 2018, the government shall file any opposition to the witness's Motion to Quash; (2) by July 16, 2018, the witness shall file any reply to the government?s opposition; (3) at 9:30 AM on July 18, 2018, the parties shall appear before Chief Judge Howell in Courtroom 22. Signed by Chief Judge Beryl A. Howell on June 29, 2018. (lcbahl) Modi?ed on 6/29/2018 (Entered: 06/29/2018) 06/29/2018 Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Status Conference held on 6/29/2018. (Court Reporter Elizabeth Saint?Loth.) (ztg) (Entered: 07/02/2018) 07/02/2018 MOTION FOR PERMISSION TO OBTAIN THE TRANSCRIPT OF THE 1 I SEALED HEARING ON JUNE 29, 2018 by UNITED STATES OF AMERICA i (Attachments: 1_ Text of Proposed Order)(zrdj) (Entered: 07/02/2018) I. i 07/02/2013 i 1_ ORDER granting 13 Motion FOR PERMISSION TO OBTAIN THE . TRANSCRIPT OF THE SEALED HEARING ON JUNE 29, 2013. Signed by I Chief Judge Beryl A. Howell on 7/2/2018. COpy(s) made available to counsel of record-(zrdj) (Entered: 07/02/2018) i I I I . 07/06/2018 10 CORRECTED TRANSCRIPT OF PROCEEDINGS before Chief Judge Beryl A. Howell held on 6/18/2018; Page Numbers: 1-15. Court Reporter/Transcriber Elizabeth Saint?Loth. (zrdj) Modi?ed on 8/15/2018 (zrdj). (Entered: 07/09/2018) 1 07/06/2018 l_7 TRANSCRIPT OF PROCEEDINGS before Chief Judge Beryl A. Howell held on 6/29/2018; Page Numbers: 1-19. Court Reporter/Transcriber Elizabeth Saint-Loth. (zrdj) Modi?ed on 8/15/2018 (zrdj). (Entered: 07/09/2018) 07/17/2018 12 I REPLY to opposition to motion re 1_0 MOTION to Quash MOTION to Stay MOTION RELIEVE HIM FROM ANY FURTHER DUTY TO PRODUCE ADDITIONAL ?led by ANDREW MILLER. (zrdj) (Entered: 07/18/2018) 07/18/2018 Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Status Hearing held on 7/18/2018. (Court Reporter Lisa Moreira.) (ztg) (Entered: 07/18/2018) 27/19/2018 Post-Hearing Submission by ANDREW MILLER (zrdj) (Entered: 07/19/2018) 07/19/2018 a Letter to the Court from Aaron S. J. Zelinsky from Aaron S. J. Zelinsky (zrdj) (Entered: 07/19/2018) 07/31/2018 2; ORDER denying the witness?s 10 Motion to Quash. See Or er for further details. 7 Signed by Chief Judge Beryl A. Howell on July 31, 2018. (lcbahl) (Entered: 07/31/2018) 08/01/2018 3 I MOTION Public Release of Opinion with Redaotions by AMERICA (AttachmentsText of Proposed (Entered: 08/02/2018) 4017 District of Columbia live database Sof'r? USCA Case #183052 08/02/2018 1 25 (Entered: 08/02/2018) Filed: 09/12/2018 Page 8 of 109 Document #1750088 Amended MOTION for Public Release of Opinion with Redactions by UNITED STATES OF AMERICA (Attachments: 1 Text of Proposed Order)(zrdj) 08/02/2018 MEMORANDUM AND ORDER granting the government's a Motion for Public Release of Opinion with Redactions and Amended Motion for Public Release of Opinion with Redactions. See Order for ?irtber details. Signed by Chief Judge Beryl A. Howell on August 2, 2018. Certi?ed copy(s) made available to counsel of record. (lcbah4) (Entered: 08/02/2018) 08/08/2018 JOINT RECOMMENDATION OF UNSEALING WITH REDACTIONS (zrdj) (Entered: 08/08/2018) 08/08/2018 1 3 MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 10 Joint Recommendation of Unsealing With Redactions, the parties, by 5 PM today, August 8, 2018, to notify the Court of their recommendation as to whether their Joint Recommendation, as well as their reSponse to this Minute Order, should be unsealed. Signed by Chief Judge Beryl A. Howell on August 8, 2018.(lcbahl) (Entered: 03/03/2013) 08/08/2018 08/08/2018 3] 3g I JOINT RECOMMENDATION OF UNSEALING REGARDING ECF 10 by UNITED STATES OF AMERICA (zrdj) (Entered: 08/08/2018) ORDER regarding the parties' 3_0 and 11 Joint Recommendations of Unsealing. See Order for timber details. Signed by Chief Judge Beryl A. Howell on August 8, 2018.(zrdj) (Entered: 08/08/2018) 08/08/201 8 08/09/2018 1 08/10/2018 08/10/2018 1 1 33 . SEALED MOTION ?led by ANDREW (This document is SEALED I Unsealed pursuant to 3; Order, Signed by Chief Judge Beryl A. Howell on August 8, 2018 (zrdj) (Entered: 08/08/2018) and only available to authorized persons.) (Attachments: 1 Text of Proposed Order)(zrdj) (Entered: 08/09/2018) SEALED ?led by UNITED STATES OF AMERICA. (This document is SEALED and only available to authorized (Entered: 08/10/2018) SEALED Response ?led by UNITED STATES OF AMERICA re 3 SEALED MOTION ?led by ANDREW MILLER. (This document is SEALED and only available to authorized persons.) (zrdj) (Entered: 08/10/2018) 08/10/2018 08/13/2018 36 1 1 is? CONTEMPT ORDER. Signed by Chief Judge Beryl A. Howell on 8/10/2018. (This document is SEALED and only available to authorized persons.) (ztg) __Modi?ed on 8/13/2018 (ztg). (Entered: 08/10/2018) SEALED REPLY TO OPPOSITION ?led by ANDREW MILLER re SEALED MOTION ?led by ANDREW MILLER. (This document is SEALED and only available to authorized persons.) (This document is SEALED and only available to authorized Paul) (Entered: 08/13/2018) 9/6/2018, 4: 15 PM District of Columbia live database 54345 9813 l4vL USCA Case 4418-3052 Document #1750088 Filed: 09/12/2018 Page 9 of 109 1 08/13/2018 18 SEALED MOTION ?led by UNITED STATES OF AMERICA. (This document is SEALED and only available to authorized persons.) (Attachments: 1_ Text of Proposed (Entered: 08f13f2018) 08f13/2018 NOTICE OF APPEAL TO DC CIRCUIT COURT as to Order on Motion for Miscellaneous Relief, 2 Order on Motion to Quash, Order on Motion to Stay, Order on Motion for Miscellaneous Relief and CONTEMPT ORDER Signed by Chief Judge Beryl A. Howell on 8/10/2018 by ANDREW MILLER. Filing fee 505, receipt number 0090-5635918. Fee Status: Fee Paid. Parties have been noti?ed. (Kamenar, Paul) Modified on 8f13f2018 to add linkage and to indicate that this notice of appeal is not under seal.(ztnr) (Entered: 08(13/2018) 08/ I M201 8 SEALED ORDER re 38 SEALED MOTION ?led by UNITED STATES OF 't AMERICA. (This document is SEALED and only available to authorized persons.) by Chief Judge Beryl A. Howell on (Entered: 08/13/2018) 08! 14:20] 8 41 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals in paper format. The Court of Appeals I fee was paid this date re 32 Notice of Appeal to DC Circuit Court. (if) (Entered: 08/14/2018) 08! 14.1201 8 I USCA Case Number 18-3052 for :32 Notice of Appeal to DC Circuit Court,, ?led by ANDREW MILLER. (zrdj) (Entered: 03/15/2013) I 080 5.9018 43 SEALED TRANSCRIPT OF PROCEEDINGS before Chief Judge Beryl A. i I Howell held on 8/10f2018; Page Numbers: 1-42. Court Reporter/Transcriber Elizabeth Saint-Loth, RPR, FCRR, (2018. (zrdj) (Entered: 08105112018) 09210612018 SEALED MOTION ?led by UNITED STATES OF AMERICA. (This document is SEALED and only available to authorized persons.) (Attachments: 1 Text of Proposed Order)(zrdj) (Entered: 09/061?2018) 09f06/2018 I SEALED ORDER re 4_3_ SEALED MOTION ?led by UNITED STATES OF AMERICA. (This document is SEALED and only available to authorized persons.) ?led by UNITED STATES OF document is SEALED and onlyr available to authorized persons.)Signed by Chief Judge Beryl A. Howell on (Entered: 09f06/2018) I 09/062?2018 MINUTE ORDER (paperless) DIRECTING the parties. by 5 PM on Monday, September 20, 2018, to advise the Court on whether to unseal (I) the parties' 4_3 Joint Motion to Unseal Contempt Order, (2) the Court?s 44 Sealed Order Regarding Sealed Motion, (3) this Minute Order, and (4) the parties' response to this Minute Order. Signed by Chief Judge Beryl A. Howell on September 6, 2018. (lcbahl) (Entered: 09f06/2018) PACER Service Center Transaction Receipt 6 7 9/6f2018, 4:15 PM USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 10 of 109 APPENDIX Case 1:18-gj-00034-BAH Document 36 Filed 08/10/18 Page 1 of 3 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 11 of 109 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY INVESTIGATION Grand Jury Action No. 18-34 (BAH) Chief Judge Beryl A. Howell FILED UNDER SEAL ORDER Upon consideration of the witness’s Motion to Be Held in Civil Contempt and to Stay Any Such Order (“Witness’s Mot.”), ECF No. 33, the government’s Motion to Compel and for Order to Show Cause (“Gov’t’s Mot.”), ECF No. 34, the related legal memoranda in support and opposition to these motions, the arguments raised at the hearing held on August 10, 2018, and the entire record herein, the Court makes the following Findings of Fact: 1. On May 10, 2018, the government served on the witness two grand jury subpoenas to produce documents and to appear before the grand jury on May 18, 2018, but following the witness’s initial agreement and then retraction to meet voluntarily with the government, he failed to appear before the grand jury on that date, as one of the subpoenas had required. 2. On May 23, 2018, the government emailed the witness’s counsel a second set of subpoenas to testify before the grand jury and produce documents by June 1, 2018, which date for testimony was postponed at the witness’s request until June 8, 2018. On June 8, 2018, the witness again failed to appear before the grand jury. 3. The government thereafter moved to compel the witness’s testimony and for an order to show cause why the witness should not be held in contempt for failure to appear before the grand jury, which motions were granted at a hearing on June 18, 2018, at 1 Case 1:18-gj-00034-BAH Document 36 Filed 08/10/18 Page 2 of 3 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 12 of 109 which hearing the witness was directed to appear before the grand jury on June 29, 2018. 4. On June 28, 2018, the witness retained additional counsel, who that day filed a second motion to quash the pending grand jury subpoenas and to stay the Court’s order directing his appearance before the grand jury that day, raising two arguments as to the constitutionality of the Special Counsel’s appointment. 5. On July 31, 2018, the Court issued an order, accompanied by a Memorandum Opinion explaining the Court’s reasoning, denying the witness’s second motion to quash and directing the witness to appear before the grand jury to provide testimony at the earliest date available to the grand jury and to complete production of the subpoenaed records promptly. 6. Following the Order’s issuance, the government requested that the witness appear before the grand jury on August 10, 2018, but the witness again failed to appear. Instead, on August 9, 2018, the witness filed a motion seeking to be held in civil contempt for refusing to testify before the grand jury, as directed by the Court. See Witness’s Mot. at 1. 7. On August 10, 2018, the government moved to compel the witness’s testimony and for an order to show cause why the witness should not be held in contempt. See Gov’t’s Mot. 8. That same day, the parties appeared before the Court for a hearing. Accordingly, it is hereby ORDERED that the Witness’s Motion is GRANTED in part and DENIED in part; and it is further 2 Case 1:18-gj-00034-BAH Document 36 Filed 08/10/18 Page 3 of 3 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 13 of 109 ORDERED that the Government’s Motion is GRANTED; and it is further ORDERED that the witness, Andrew Miller, is found in civil contempt of the Court’s July 31, 2018 Order, ECF No. 22; and it is further ORDERED that the witness shall be confined at the District of Columbia Jail, as that facility is nearest to the Grand Jury, until such time as the witness is willing to give such testimony or provide such information as required by the Court’s July 31, 2018 Order, provided that such period of confinement shall not exceed the life of the term of the grand jury, including extensions, before which such refusal to comply with the Court’s Order occurred, and in no event shall such confinement exceed eighteen months; and it is further ORDERED that this Order is STAYED until Tuesday, August 14, 2018 at 9:00 AM, at which time the stay shall be lifted, except that the stay shall remain in place if the witness has filed a Notice of Appeal or the witness and the government have filed a Stipulation setting out an alternative arrangement. SO ORDERED. Date: August 10, 2018 __________________________ BERYL A. HOWELL Chief Judge 3 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 14 of 109 APPENDIX Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 1 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 15 of 109 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Grand Jury Action No. 18-34 (BAH) In re GRAND JURY INVESTIGATION Chief Judge Beryl A. Howell REDACTED Table of Contents I. BACKGROUND ...................................................................................................................... 3 A. Historical Background ......................................................................................................... 4 B. Statutory Background ........................................................................................................ 12 C. The Special Counsel Regulations ...................................................................................... 13 ................................................................................. 17 D. E. The Subpoenas at Issue ...................................................................................................... 19 II. LEGAL STANDARD ............................................................................................................. 23 III. DISCUSSION ......................................................................................................................... 24 A. ........................................................... 24 B. The Special Counsel is an Inferior Officer ........................................................................ 26 1. e a Special Counsel ........... 28 a. The Attorney General Has Plenary Statutory Power of Direction and Supervision . 31 b. The Attorney General Retains Broad Authority Under The Regulations to Direct and Supervise a Special Counsel .34 2. The Other Morrison Factors All Weigh Toward Inferior Officer Status ..................... 48 a. Limited Duties ........................... ..............49 c. Limited Tenure 3. Functions ...................................................................................................................... 56 .. 67 1. 28 U.S.C. § 533(1)........................................................................................................ 67 2. 28 U.S.C. § 515(b)........................................................................................................ 71 3. ............... 77 4. .............. 80 D. The Special Counsel Was Validly Appointed By a Head of Department ......................... 83 1. 28 U.S.C. § 508(a) Allows the DAG to Serve as Acting Attorney General Where the Attorney General is Recused ........................................................................................ 84 2. 28 U.S.C. § 510 Allows the Attorney General to Delegate to the DAG Authority to Appoint the Special Counsel ........................................................................................ 90 IV. CONCLUSION ....................................................................................................................... 92 C. 1 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 2 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 16 of 109 MEMORANDUM OPINION This matter comes before the Court on a second motion by a grand jury witness to quash subpoenas issued by the Special Counsel to provide testimony and documents to the grand jury as part of the ongoing investigation into Russian interference with the 2016 presidential election, and related matters, with which the Special Counsel was tasked. This time, the witness seeks to quash the grand jury subpoenas on the grounds that the Special Counsel lacks authority to issue the subpoenas as his appointment is unconstitutional, in violation of the Appointments Clause. [T]he Appointments Clause was designed to ensure public accountability for both the Edmond v. United States, 520 U.S. 651, 660 (1997); see also Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018) (Thomas, J., [T]he Appointments Clause maintains clear lines of accountability encouraging prosecutorial power, just like the exercise of other forms of government authority, is ultimately accountable to elected officials. Federal prosecutors are granted broad authority under our laws to choose their targets and pursue their investigations. As former Attorney General Robert H. Jackson stat Address at Conference of United States Attorneys (Apr. 1, 1940). Such power, left unchecked, is Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J., dissenting). Prosecutors must wield broad powers to investigate effectively criminal activity, but elected officials must exercise sufficient control over prosecutors, principally by setting boundaries in law, to enable the public to know who to credit or blame for exercises of prosecutorial authority. 2 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 3 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 17 of 109 Here, the witness essentially argues that the Special Counsel wields too much power with too little accountability. Specifically, the witness contends that the Special Counsel was appointed unlawfully, under the Appointments Clause of the Constitution, U.S. CONST. art. II, § 2, cl. 2, because (1) the Special Counsel is a principal rather than inferior officer, and thus was required to be nominated by the President and confirmed by the Senate; (2) no statute authorized Justice official who appointed the Special Counsel lacked authority to do so. The witness raises legitimate questions, but his concerns are not legally sustainable. The as the Special Counsel is supervised by an official who is himself accountable to the elected do so. For these reasons, e grand jury subpoenas is denied. I. BACKGROUND Consideration of the constitutional and statutory issues the witness raises benefits from review of the historical development of the Attorney Ge in this task. Following this is an overview of relevant statutes and the internal Department of Justice Special Counsel regulations. Finally, the circumstances surrounding the Special , are recounted. 3 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 4 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 18 of 109 A. Historical Background The Attorney General did not always possess the centralized authority he enjoys today to s law enforcement and litigation responsibilities. Rather, such authority developed and expanded over time. The Judiciary Act of 1789 created the office of Attorney General, who was authorized to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments. An Act to Establish the Judicial Courts of the United States , ch. 20, § 35, 1 Stat. 73, 93 (1789). Edmund Randolph, the first United States Attorney General appointed by the first President, George Washington, had neither clerical staff nor office space, and had to The Legal Work of the Federal Government, 25 VA. L. REV. 165, 176 (1939). The Judiciary Act also provided for the appointment in each district of a district attorney, such district . . . whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that by the President. United States v. Hawthorne, 449 F. Supp. 1048, 1051 (S.D. Cal. 1978), af specifically authorized to represent the United States only in judicial proceedings which took the district attorneys having ex 4 , Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 5 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 19 of 109 Id. Attorney General was required to appear only in the Supreme Court, there was doubt about his In re Persico, 522 F.2d 41, 53 (2d Cir. 1975). 1 The ability to appear in oth Civil War, federal prosecutorial efforts were almost completely Id.2 id., Congress began to concentrate direction of the attorneys . . . of all the districts in the United States and the Territories as to the -General and the The Act also required the distr -General an account of their Id. Finally, the Act tes) such attorneys and counsellors-at-law as he may think necessary to assist the district-attorneys in the Id. § 2.3 With the DA Act, the Attorney General could for the first time both direct the district 1 Persico number of early cases in federal t Id.; see also Hawthorne, 449 F. Supp. at 1055 n.10. Given that preoccupied with growing requests for advisory opinions and with expanding Supreme Court litigation, the local Persico, 522 F.2d at 53. 2 Presidents and Attorneys General, beginning with Edmund Randolph, lobbied over the course of decades to give the Attorney General control and supervision over the district attorneys. See : The Solicitor General in Historical Context, Address to the Supreme Court Historical Society (June 1, 1998). Congress resisted these efforts, but enacted piecemeal legislation during this period giving the Attorney General control over specific areas of litigation on an ad hoc basis. See id. n.34. 3 Congress briefly repealed this authority in 1869, but restored it shortly thereafter, see Waxman, supra. 5 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 6 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 20 of 109 Id. The Attorney General still lacked attorneys under his own immediate control and was required instead to rely on the district attorneys and their assistants to execute his directives. In addition, the Attorney General himself still had no explicit statutory authority to litigate outside the Supreme Court. Congress empowered the Attorney General in 1868 to litigate in the Court of Claims and gave him two assistants, to be nominated by the President and confirmed by the Senate rather than chosen by the Attorney General himself, see Act of June 25, 1868, ch. 71, § 5, 15 Stat. 75, 75 76 essentially unchanged between 1789 and 1870, see United States v. 1,960 Acres of Land in Riverside Cty., 54 F. Supp. 867, 875 (S.D. Cal. 1944). As the Supreme Court stated in the Confiscation Cases: [p]ublic prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empanelled for the trial of the case, except in cases where it is otherwise provided in some act of Congress. Civil suits, in the name and for the benefit of the United States, are also instituted by the district attorney, and, in the absence of any directions from the AttorneyGeneral, he controls the prosecution of the same in the district and circuit courts, and may, if he sees fit, allow the plaintiffs to become nonsuit, or consent to a discontinuance. Settled rule is that those courts will not recognize any suit, civil or criminal, as regularly before them, if prosecuted in the name and for the benefit of the United States, unless the same is represented by the district attorney, or some one designated by him to attend to such business, in his absence, as may appertain to the duties of his office. 74 U.S. 454, 457 (1868). Federal litigation authority, while more concentrated in the Attorney General than before, thus remained largely decentralized. Government working independently of and at odds with the local District Attorneys and the 6 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 7 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 21 of 109 1,960 Acres, 54 F. Supp. at 875, led Congress to create the Department of Justice, with the Attorney General at its head, see An Act to Establish the Department of Justice concerned with consolidating the legal offices of the executive branch to promote greater Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303, 1310 (2000). One to the President, the heads of Departments, the heads of bureaus, and other officers of the Government for the guidance of their official action, the unnecessary expenditure CONG. GLOBE, 41st Cong., 2d Sess. 3065 (1870) (statement of Rep. William Lawrence of Ohio). Another supporter described the DOJ Act as nee Id. at 3035 36 (statement of Rep. Thomas Jenckes of Rhode Island); see also 1,960 Acres the Act was the multiplicity of conflicting legal opinions given by the law officers in the several departments[,] expenditures for special counsel, including large retainers paid eminent lawyers who at times rendered little service in return numerous private counsel appointed by Cabinet The DOJ Act centralized federal authority to conduct litigation under the Attorney -General in the performance of his duties; Attorney General and Solicitor General; transferring various solicitors, law officers, and clerical workers in other departments into the Department of Justice; 7 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 8 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 22 of 109 law duties to the Department. 1870 Act §§ 2 3, 7. Whereas the Judiciary Act of 1789 had authorized the Attorney General to argue only before the Supreme Court, the district attorneys being authorized to argue before other courts, the DOJ Act expressly authorized the Attorney - Id. § 5. The Act gave the Attorney General additional power to direct and supervise his subordinates, including broad Id. §§ 4, 6, 8, 14. The Act reaffirmed the Attorney Id. §§ 15, 16. Section 17 of the DOJ Act prohibited the other departments fro Id. § 17. Section 17 also allowed to any person or persons, beside the respective district attorneys and assistant district attorneys, for services in such capacity to the United States, or any branch or department of the government thereof, unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services were actually rendered, and that the same could not be 8 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 9 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 23 of 109 performed by the Attorney-General, or solicitor-general, or the officers of the department of Id. Finally, as relevant here, Section 17 provided that: every attorney and counselor who shall be specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of said Department, as a special assistant to the Attorney-General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and be subject to all the liabilities imposed upon such officers by law. Id. United S directly as well. Hawthorne and distinct statutory bases for the Attorney General, as head of the Department of Justice, to Id.; see Persico, 522 F.2d its employees would interfere with the functions of the district attorneys and gave the Attorney attorneys . . . . in grand Persico ist local protect newly-enfranchised black citizens from widespread Ku Klux Klan terrorism in Southern Id. antitrust and civil rights cases have been increasingly controlled from Washington through the various divisions in the Department of Id. 9 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 10 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 24 of 109 trial of as to whether speciallygrand jury proceedings. In United States v. Rosenthal, the Circuit Court for the Southern District of New York held that the Attorney General, regular Department of Justice officers, and specially-retained attorneys could participate only in trials but not in grand jury proceedings, as the latter were the exclusive province of the district attorneys and their assistants. 121 F. 862, 868 (C.C.S.D.N.Y. 1903). Rosenthal regard for the primary policy of limiting the conduct of matters before grand juries to the local Id. at 866 67. Rosenthal did not doubt that the DOJ Act only that such special assistants could not participate in grand jury proceedings. Id. at 868. Two -retained other courts rejected Rosenthal attorneys could conduct grand jury proceedings. See United States v. Twining, 132 F. 129, 131 32 (D.N.J. 1904); United States v. Cobban, 127 F. 713, 717 (D. Mont. 1904). Congr Rosenthal in 1906 by enacting a statute authorizing the Attorney General, regular Department of Justice officers, and speciallyRosenthal Persico, 522 F.2d at 59. The 1906 Act provided [t]hat the Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney-General under any 10 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 11 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 25 of 109 provision of law, may, when thereunto specifically directed by the AttorneyGeneral, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys now are or hereafter may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought. An Act to Authorize the Commencement and Conduct of Legal Proceedings Under the Direction of the Attorney- 59-404, ch. 3935, 34 Stat. 816, 816 17 an unbounded Hawthorne, 449 F. Supp. at 1055; see also id. at 1054 reservations of a minority of the House Committee which had strongly objected to granting Attorney General would supervise the work of these assistants, and bear ultimate responsibility Id. at 1055. Between 1921 and 1964, Congress annually appropriated money to the Department of Justice to employ officials to detect and prosecute crime. Language from the appropriation etection and Act of Aug. 31, 1964, Pub. L. No. 88-527, tit. II, 78 Stat. 711, 717. In 1965, Congress embarked on a comprehensive recodification of the U.S. Code. S. Rep. No. 89-1380, at 18 (1966); accord H.R. Rep. 89-901, at 1 (1965). In the course of those efforts, Congress codified language from the act into statute at 28 U.S.C. § 533(1). Although the appropriation act had included this provision under 11 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 12 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 26 of 109 B. Statutory Background Today, the Attorney General remains the head of the Department of Justice. 28 U.S.C. -in-command, Id. §§ 504, 508(a) make such provisions as he considers appropriate authorizing the performance by any other Id. §§ 509, reof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Id. ll supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special [assistants to U.S. Attorneys] in the discharge of their respecti Id. § 519; see also id. § 547(5) such reports as the A id. id. the Attorney General under law, . . . conduct any kind of legal proceeding, civil or criminal, 12 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 13 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 27 of 109 including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the may himself do the same. Id. § 515(a). The Attorney General is re disqualification of any officer or employee of the Department of Justice . . . from participation in a particular investigation or prosecution if such participation may result in a personal, financial, statutory requirement, the Attorney General promulgated 28 C.F.R. § 45.2, which provides, in criminal investigation or prosecution if he has a personal or political relationship with . . . [a]ny person or organization substantially organization which he knows has a specific and substantial interest that would be directly see also Disqualification Arising From Personal or Political Relationships, 48 Fed. Reg. 2,318, 2,319 gation). The regulation defines elected official, a candidate . . . for elective, public office, a political party, or a campaign 28 C.F.R. § 45.2(c)(1). C. The Special Counsel Regulations In 1999, shortly before the Independent Counsel provisions of the Ethics in Government -521, § 601(a), 92 Stat. 1824, 1867 73; see 28 U.S.C. §§ 591 599 (expired), lapsed, the Department of Justice promulgated 13 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 14 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 28 of 109 balance between independence and accountability in certain sensitive investigations, recognizing that there is no perfect solution to the problem, Office of Special Counsel, 64 Fed. Reg. 37,038, 37,038 (July 9, 1999). 4 The regulations seek to ay-to- who is if appropriate, prosecute matters when the Attorney General concludes that extraordinary circumstances exist such that the public interest would be served by removing a large degree of Id. The regulations leave a responsibility for the matter from the D independent prosecutorial discretion to decide whether charges should be brought, within the context of the establ Id. The regulations thus pecial Id. The regulations also contemplate that the Acting Attorney General would assume Id. The Department of Justice promulgated the regulations without either notice and comment or a 30Id. at 37,041. iction, 4 The EIGA created the position of Special Prosecutor, to sunset in five years. See EIGA § 601(a). Congress reauthorized this provision in 1983, renaming the Special Prosecutor the Independent Counsel, and then again in 1987 and 1994. See Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, § 7, 96 Stat. 2039, 2042; Independent Counsel Reauthorization Act of 1987, Pub. L. No. 100-191, § 2, 101 Stat. 1293, 1306; Independent Counsel Reauthorization Act of 1994, Pub. L. No. 103-270, § 2, 108 Stat. 732, 732. 14 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 15 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 29 of 109 28 C.F.R. § 600.4(a), (b). A Special Counsel is offices within the Department for guidance with respect to established practices, policies and procedures o Id. § ion would render compliance with required review and approval procedures by the designated Departmental Id. -to-day supervision of any official provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it Id. he views of the Special Counsel in making such determination. Id. A Special Counsel is not breach of ethical duties under the same standards and to the same extent as are other employees of the Department of handled through the appropriate office of the Department upon the approval of the Attorney General. Id. § 600.7(c). The Attorney General dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmen in which event in writing of the specif Id. § 600.7(d). 15 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 16 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 30 of 109 the current fiscal year . . . Id. § 600.8(a)(1). Id. beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status Id. 600.8(a)(2). The etermine[s] whether the investigation should continue and, if so, Id. In addition to providing a budget to be approved by the Attorney General, a the course of his or her investigation in conformity with the Departmental guidelines with respect to id. inform Department leadership, including the Attorney General and the [DAG], of (1) major developments in significant investigations and litigation, (2) law enforcement emergencies, and (3) events affecting the Department that are likely to generate national media or Congressional U.S. ATTORNEY S MANUAL § 1- s work, he or she shall provide the Attorney General with a confidential report explaining the C.F.R. § 600.8(c). The Attor Id. § 600.9(a)(1) (2). In addition, the description and explanation of instances (if any) in which the Attorney General concluded that a 16 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 17 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 31 of 109 proposed action by a Special Counsel was so inappropriate or unwarranted under established Id. § 600.9(a)(3); accord id. § 600.7(b). to create any rights, substantive or procedural, enforceable at law or equity, by any person or Id. § 600.10. D. existing or future investigations of any matters related in any way to the campaigns for President . The Attorney General announced that [the] Acting Deputy Attorney General . . . shall act as and perform the functions of the Attorney General with respect to any matters from which I have recused myse Id. The Attorney Id. In subsequent testimony before the U.S. Senate Select Committee on Intelligence, the Attorney G Jeff Sessions, Attorney General, Prepared Remarks to the United States Senate Select Committee on .5 The Attorney General further 5 The Attorney General did not file a formal order of recusal. See Neither 28 C.F.R. § 45.2 nor any other statutory or regulatory provision require that a recusal be memorialized in a written order or other memorandum. Cf. ed not file a 17 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 18 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 32 of 109 testified that between the day after he became Attorney General and the date of his recusal, he determined was necessary to inform [h Id. On March 20, 2017, then-FBI Director James B. Comey testified before the U.S. House of Representatives Permanent Select Committee on Intelligence that he ha[d] been authorized by the Department of Justice to confirm that the FBI, as part efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the James B. Comey, Dir., FBI, Statement Before the House Permanent Select Committee on Id. -related revelatory testimony about the ongoing counterintelligence investigation of Russian efforts to interfere in the 2016 presidential election, Rod J. Rosenstein was sworn in as DAG on April 26, 2017. See Meet the Deputy Attorney General, U.S. DEP T OF JUSTICE, https://www.justice.gov/dag/staff-profile/meet-deputy-attorney- general (last visited July 31, 2018). The DAG became Acting Attorney General, by operation of law, as to those matters for which the Attorney General was recused. See Recusal Statement; 28 U.S.C. § 508(a); see also Special Counsel for the 18 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 19 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 33 of 109 Attorney General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian ) (May 17, 2017). The DAG specifically authorized the Special Counsel: to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a). Id. Id. ¶ (c). The DAG specified that 28 C.F.R. §§ 600.4 id. ¶ (d), but did not invoke the regulations as foreign interference in the 2016 presidential election and potential collusion in those efforts by In re Grand Jury Investigation, 17-mc-2336 (BAH), 2017 WL 4898143, at *1 (D.D.C. Oct. 2, 2017). E. The Subpoenas at Issue The Special Counsel, on May 10, 2018, served on the witness two grand jury subpoenas to produce documents and appear before the grand jury on May 18, 2018. 2, ECF No. 1; see also generally Mot. Compel, Ex. A, Grand Jury Subpoenas s -1.6 The witness agreed to meet voluntarily with the Special Counsel on May 14, 2018. Shortly before the meeting date, on May 6 19 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 20 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 34 of 109 behalf to advise that she was considering representing the witness in connection with this matter, and that the witness no longer wished to meet with the Special Counsel on May 14. Mot. Compel ¶ 2.7 On May 14, 2018, the Special Counsel called Attorney 1 to inquire about her representation of the witness, but Attorney 1 did not return that call. Id. ¶ 3. The witness failed to appear before the grand jury on May 18, 2018, as one of the first subpoenas has required. Id. ¶ 4. The Special Counsel tried to contact Attorney 1, who was unavailabl represented the witness and would respond to the Special Counsel on May 21, 2018. Id. The Id. Despi on May 21, 2018. Id. ¶ 5. Instead, the Special Counsel emailed Attorney 1 a second set of subpoenas on May 23, 2018, for the witness to testify and produce documents on June 1, 2018. Mot. Compel, Ex. B, Grand Jury Subpoenas, dated May 23 s No. 1-2. Two days later, the Special Counsel, having received no response from Attorney 1, again emailed Attorney 1 to confirm receipt of the second subpoenas. Mot. Compel ¶ 7. Attorney 1 responded by requesting additional time to comply given the volume of responsive documents. Id. pearance to June 8, 2018. Id. Attorney 1 did not acknowledge this schedule change, and on May 31, 2018, the Special Counsel contacted Id. ¶ 8. Attorney 1 expressed co 7 Attorney 1 is Alicia Dearn of the law firm Bellatrix P.C. 20 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 21 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 35 of 109 response, the Special Counsel agreed that the witness need not produce the identified materials. Id. ¶¶ 8 oena required. On June 5, 2018, the Special Counsel emailed Attorney 1 new subpoenas reflecting the June 5, 2018, production date and the June 8, 2018, appearance date. Id. ¶ 10; see also generally Mot. Compel, Ex. C, Grand Jury Subpoenas, dated June 8, 2 s 1Mot. Compel ¶ 11. On June 8, 2018, the witness again failed to appear before the grand jury. Id. ¶ 12. An FBI agent informed the witness by phone that the witness was scheduled to appear before the grand jury, but the witness stated that he was not in Washington, DC, and that his attorney handled matters related to his grand jury appearance. Id. When the witness failed to appear a second time, the Special Counsel emailed Attorney 1 on June 11, 2018, at approximately 8:50 a.m., requesting that Attorney 1 contact the Special Id. ¶ 13. The Special Counsel reiterated show cause as to why [the witness] should not be held in respond by 9:00 a.m. the next day. Id. ¶ 14. At 9:07 a.m. the next day, Attorney 1 informed the Special Counsel that she would provide correspondence within an hour, but by 12:44 p.m. had failed to do so. Id. ¶ 15. In response to another request from the Special Counsel, Attorney 1 s of noon the following day. Id. ¶¶ 15 16. 21 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 22 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 36 of 109 On June 13, 2018, the Special Counsel moved to compel and for an order to show cause why the witness should not be held in contempt for failure to appear before the grand jury. Id. at 1. As ordered by the Court June 14, 2018, styled as a motion to quash, or in the alternative, to modify the grand jury subpoenas due to burdensomeness. See generally First Mot. Quash, ECF No. 4. The Spe ¶ 3, ECF No. 3, and the parties appeared for a hearing on their motions on June 18, 2018, at moot, and directed the witness to appear before the grand jury on June 28, 2018 and to perform the agreed-upon searches. On or about June 28, 2018, the witness retained additional counsel, Attorney 2, who on June 28, 2018, filed a motion t appointment violates the Appointments Clause of the U.S. Constitution on the grounds that (1) the Special Counsel is a principal officer who had not been appointed by the President upon 10.8 a motion recently filed by a defendant, Concord Management and Consulting LLC, in a criminal case being prosecuted by the Special Counsel in this Court. Id. at 2 (citing United States v. Internet Research Agency, LLC, et al., No. 18-cr-32, Mem. Points & Authorities Supp. Def. 8 Attorney 2 is Paul Kamenar of the Law Office of Paul D. Kamenar. 22 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 23 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 37 of 109 June 25, 2018), ECF No. 36).9 The Court imposed a scheduling order, requiring the parties to appear for an in-person status hearing on June 29, 2018. See Minute Order (June 28, 2018). pending Motion to Quash. See Minute Order (June 29, 2018). The witness raised for the first time in his reply brief a new argument against the lawfulness of t General. See Supp. Following a hearing on July 18, 2018, and supplemental filings by the parties to address II. LEGAL STANDARD may quash or modify [a] subpoena if compliance FED. R. CRIM. P. 17(c)(2). was applied for and issued under the signature of unauthorized persons would constitute a In re Sealed Case, 827 F.2d 776, 778 (D.C. cognizable claim of und Cir. 1987); accord In re Sealed Case, 829 F.2d 50, 53 55 (D.C. Cir. 1987) (same). 9 See LCrR 47(e). Th own 21. Agency, 456 F. Supp. 2d 46, 53 (D.D.C. 2006), , 530 F.3d 980 (D.C. Cir. 2008); see also Davis v. Pension Ben. Guar. Corp., 734 F.3d 1161, 1167 (D.C. Cir. 2013) . . . as this would s arguments to determine which apply here poses little difficulty, however, as the witness and Concord raise overlapping, if not entirely identical, arguments that turn on pure issues of law common to both litigants rather than facts peculiar to them. Thu 23 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 24 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 38 of 109 III. DISCUSSION appointment under the Appointments Clause. The witness argues that the Special Counsel is a principal officer who must be, but was not, nominated by the President and confirmed by the s that if the Special Counsel Id. at 8. Finally, the witness posits, even if Congress statutorily authorized the appointment, the DAG did no dism 10 n.5, ECF No. 18. As explained in further detail below, beginning il. A. motion to reconsider [the w good cause for [the rtain it at this Id. Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018) (internal quotation marks omitted). 24 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 25 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 39 of 109 -ofpowers conce Freytag v. of Internal Revenue, 501 U.S. 868, 878 79 (1991) (internal quotation marks omitted). . Id. at 879. constitutional authority, in his initial motion. Id. Blair v. United States question about the constitutionality of the statutes under which the gran does not dictate a result contrary to that the Court reaches here. The grand jury witnesses in Blair did not challenge the lawfulness of the grand j of constitutionality of a statute the alleged violations of which the grand jury was investigating. Id. at 277. Here, in contrast, the witness does not allege that the grand jury is investigating violations of an unconstitutional statute, but rather challenges the constitutionality of the Special Class v. United States the claim were successful. not, by itself, bar direct appeal of 06 (2018) (internal quotation marks omitted). Class, to be sure, involved a criminal defendant facing imprisonment, supervised release, and the attendant relinquishment of certain rights, id. at 802, rather than a request merely to testify before 25 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 26 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 40 of 109 the grand jury. Yet, if Class and the instant situation are not on all fours with one another, nor are they altogether different. The witness here may face imprisonment for contempt should he seek to compel his compliance with grand jury subpoenas or to hold him in contempt for failing to comply. See id. at 806. Even construing the tion to quash as a motion to reconsider, as the Special Counsel urges, the B. The Special Counsel is an Inferior Officer The witness contends that the Special Counsel is a principal officer, who was neither nominated by the President nor confirmed by the Senate, and thus was appointed in violation of the Appointments Clause of Article II. See Witness Mot. at 14.10 Article II distinguishes between principal and inferior officers in prescribing the manne See U.S. CONST. art. II, § 2, cl. 2. Under the Appointments Clause, the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all [Principal] 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. Id. This two- approved by the President and Senate or else are responsible to such officers. Edmond, 520 U.S. at the process of presidential nomination and senatorial confirmation the so- 10 The Special Counsel does not dispute that he is an officer of the United States. See Indeed, if the Independent Counsel at issue in Morrison was held to be an inferior officer, 487 U.S. at 672, little doubt exists that the Special Counsel is at least an officer as well. 26 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 27 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 41 of 109 to outweigh the benefits of the more cumbersome procedure only with respect to the appointment Id. at 660 that is far from clear, and the Framers provided little guidance into where it should be dr Morrison, 487 U.S. at 671. Morrison identified four factors a court considers in determining Id. at 671 72. Edmond clarified that the first of these factors by a higher . . . official is by far the most - nomination with Edmond officer or officers below the President: pends on whether Id. at 662; accord Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. PCAOB Edmond to conclude that officials were inferior rather than principal due to the 11 Indeed, Edmond held that an officer with a presidentially-nominated, Senate-confirmed superior is inferior even if all three other Morrison factors 11 Edmond circumstances might exist in which an officer who has a superior nonetheless is a principal officer. More recently, however, the Supreme Court has reiterated Edmond PCAOB, 561 U.S. at 510 (quoting Edmond, 520 U.S. at 662 (alterations and internal quotation marks omitted)); but see United States v. Libby Morrison nor Edmond established a bright-line test under which Appointments Clause challenges are resolved . . . . Neither case states explicitly, nor even suggests, that the factors relied upon are exclusive . . . . Edmond did not reject the validity of the Morrison 27 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 28 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 42 of 109 jurisdiction, and tenure weigh toward principal officer status. 520 U.S. at 661 62 (concluding two [Morrison factors and that such The witness contends that the Special Counsel is a principal officer who was neither nominated by the President nor confirmed by the Senate, and thus was unconstitutionally appointed. See Witness Mot. at 14. As explained in more detail below, however, the Attorney the Special Counsel an inferior officer. Edmond, 520 U.S. at 663. To the extent relevant, the remaining three Morrison factors each weigh in favor of inferior officer status. Nor does the breadth of the authority the Special Counsel wields negate his inferior officer status. The gument that the Special Counsel is a principal officer thus does not pass muster. 1. The primary criterion to determine principal-inferior officer status is whether an officer ected and supervised at some level by others who were appointed by Presidential Id. at 663. Edmond tantial supervision and oversigh who is, or , a principal officer; (2) decision Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1338 (D.C. Cir. 2012) (citing Edmond, 520 U.S. at 664 65). 28 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 29 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 43 of 109 At the outset, determining supervise the Special Counsel requires looking solely to statutes, rather than to any regulations, 12 which can neither augment nor detra Any authority the Attorney General might claim under the Special Counsel regulations beyond that which statutes already grant him would be invalid, and the regulations themselves ultra vires, as the Attorney General cannot give himself greater powers than statutes already provide. See, e.g., Bowen v. Georgetown Univ. Hosp. is limited to the authority Cent. United Life Ins. Co. v. Burwell, 827 F. see also Rosenthal cannot be delegated by a superior to an inferior. A principal conveys to his agent what he has, and not At the same time, if statutes give the Attorney General power to direct and supervise the Special Counsel, the regulations could not possibly diminish such authority, as the Attorney 12 tatutory authority, not the regulations. See 600.10 of the regulat id. ¶ (d), do not themselves authorize policies. See id.; 28 C.F.R. §§ 600.4 600.10; id. pt. 600 (citing 28 U.S.C. §§ 509 and 510 as authority for the United States v. Manafort, No. 1:18-cr-83, 2018 WL 3126380, at *11 (E.D. Va. June 26, 2018) regulations at issue here, but in the Constitution and in the statutes that vest the authority to conduct criminal litigation in the Attorney General and United States v. Manafort, No. 1:17cr-0201-01, 2018 WL 2223656, at *11 (D.D.C. May 15, 2018) Special Counsels without relying at all on the current Special Counsel or similar regulations. See, e.g., Sealed Case, 829 F.2d at 52 53, 55 (Iran-Contra); Libby, 429 F. Supp. 2d at 28 United States v. Nixon, 418 U.S. 683, 694 & n.8 (1974) (Watergate). 29 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 30 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 44 of 109 the regulations at will, immediately and without notice or comment, guarantees that he retains ultimate powers of direction and supervision. See 64 Fed. Reg. at 37,041 exempt from the usual requirements of prior notice and comment and a 30-day delay in the see also United States v. Nixon Morrison could have removed [the Watergate Special Prosecutor] at any time, if by no other means than amending or revoking the regulation defining his autho Sealed Case, 829 F.2d at 56 regulation remains in force. Subject to generally applicable procedural requirements, the Attorney General may rescind this regulation at any time, thereby abolishing the Office of Indepe Nixon, 418 U.S. at 695, but only to recognize that shackles the Attorney General may remove anytime, Sveen v. Melin, 138 S. Ct. 1815, 1823 (2018), the Attorney General voluntarily has limited his power but unlike Ulysses, the Attorney General can unbind himself at will. If the regulations ever Special Counsel who disobeyed directives, the Attorney General could rescind the regulations immediately and direct or fire the Special Counsel as he wished. 13 The regulations reflect the 13 To be sure, the Attorney General might incur a significant political cost for rescinding the regulations to exercise greater control over, or remove without cause, the Special Counsel. Such reputational harm to the Attorney General is cognizable only in the court of public opinion, not a court of law. The fact that a public official might get egg on his face for making an unpopular decision is a feature, not a bug, of a constitutional system designed around 30 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 31 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 45 of 109 PCAOB, 561 U.S. at 497, nor raise any separation of powers problems, being promulgated by the Morrison, 487 U.S. at 691. That the Attorney General can reassert his authority over the Special Counsel at will shows that his authority was never genuinely restricted in the first place. The Attorney , the regulations cannot detract from any statutory authority the Attorney General has to direct and supervise the Special Counsel. As explained in further detail below, governing statutes give the Acting Attorney General broad authority to direct and supervise the Special Counsel. The Acting Attorney General has delegated and can rescind all authority the Special Counsel enjoys, see 28 U.S.C. §§ 509, 510, 515(a); Appointment Order ¶¶ (b), (c), thus enabling the Acting Attorney General to oversee the Speci satisfies Edmond inferior officer status. The regulations, being rescindable at will, do not alter this conclusion, and if anything serve to emphasize the therefore an inferior officer. a. The Attorney General Has Plenary Statutory Power of Direction and Supervision Governing statutes vest in the Attorney General broad power to oversee a Special New York v. United States, 505 U.S. 144, 168 (1992); see also PCAOB, 31 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 32 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 46 of 109 Sectio performance by any other officer of the Attorney General . . . of the Department of Justice of any function 28 U.S.C. §§ 509, 510. Section 515(a), meanwhile, allows the legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States Id. § 515(a). These statutes give the Attorney General virtually p Intercollegiate, 684 F.3d at 1338, a Special Counsel and to countermand any action a Special Counsel takes, as the Attorney ion.14 General may at any time rescind a Should a Special Counsel take an action of which the Attorney General disapproves, the Attorney General can withdraw his authorization to pursue the course of action and make his own decisions in this area. A ender a final decision on Id. (quoting Edmond a rescind such authority at will give the Attorney General the effective power to oversee, supervise, and countermand a Special Counsel in exercising such authority. The Special Counsel is, if anything, more closely overseen by a Cabinet-level official than were the Coast Guard Court of Criminal Appeals judges determined to be inferior officers in Edmond. Supervisory power over those judges was split between the U.S. Court of Appeals 14 The Attorney General invoked all three statutes in appointing the Special Counsel. See Appointment Order (citing 28 32 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 33 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 47 of 109 rtation in his Edmond, 530 U.S. at 664, 666. In contrast, the Special Counsel is supervised and overseen directly and exclusively by the Attorney General. See 28 U.S.C. §§ 510, 515(a). Finally, the Attorney General may remove a Special Counsel. While no statute speaks incident to the power of appoint PCAOB, 561 U.S. at 509; accord Myers v. United States, [The] constitutional principle [that] the power of appointment carried , In re Hennen, 38 U.S. (13 would seem to be a sound and necessary rule, to consider the power of removal as incident to the see also Sampson v. Murray, 415 U.S. 61, 70 n.17 (1974) (same); Burnap v. United States Reagan v. United States, 182 U.S. 419, 424 (1901) (describing Hennen Parsons v. United States, 167 U.S. 324, 330 of congress in 1789, and the universal practice of the government under it, had settled the questi Myers charge of and responsible for administering functions of government, who select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they An Attorney General, having appointed a Special Counsel, thus has 33 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 34 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 48 of 109 Edmond, 520 U.S. at 664.15 For these the power of remova work is directed and supervised Acting Attorney General, making the Special Counsel an inferior officer. Id. at 663; see also PHH Corp. v. CFPB, 881 F.3d 75, 176 n.3 (D.C. Cir. 2018) (Kavanaugh, J., dissenting) (distinguishing the the traditional special counsels who are appointed by the b. The Attorney General Retains Broad Authority Under The Regulations to Direct and Supervise a Special Counsel Although, as explained above, the regulations are not relevant to a status as an inferior or principal officer, even if they were, they would only confirm that a Special Counsel f the Attorney General exercises substantial direction and supervision over virtually every facet of a Special ecial Counsel provide an explanation for any investigative or prosecutorial step, and [to] after review conclude that the action is so inappropriate or unwarranted under established Departmental b). The Attorney General thus may review and countermand any action a Special Counsel pursues. The regulations require the Id.16 The regulations also allow the Attorney General to 15 dereliction of duty, incapacity, conflict of interest, or [] other good cause, including violation of Departmental infra. 16 ct and supervise a Fund, 421 U.S. 491, 504 (1975); accord McGrain v. Daugherty 34 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 35 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 49 of 109 discipline and remove a Special Counsel. Id. § 600.7(d); see also id. Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department Other provisions of the regulations further reinforce that a Special Counsel is an inferior either approve or veto any expansion of jurisdiction a Special Counsel seeks. Id. full power and independent authority to exercise all investigative and prosecutorial functions of Id. § 600.6. Notably, U.S. Attorneys are subject to the Attorney Attorney General 28 U.S.C. §§ 519, 547(5); see also id. annual basis. 28 C.F.R. § 600.8(a). When making subsequent budget requests, a Special it. Id. § 600.8(a)(2). procedures, practices practices, policies and procedures of the Department, including ethics and security regulations Id. § 600.7(a). 35 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 36 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 50 of 109 his or her investigation in conformity with the Departmental guidelines with respect to Urgent Id. nd generate national media or Congressional attentio .S. ATTORNEY S MANUAL §§ 1-13.100, 1- investigation, with the resulting opportunity for consultation, is a critical part of the mechanism through which the Attorney General can discharge his or her responsibilities with respect to the 40. The witness argues that Section 600.7(b) General to countermand steps taken by the Spec Concord Mem. at 32 33. The witness points to Section as in, the Att merely advisory, not mandatory. Concord Mot. at 32 (citing -CWA, AFL-CIO v. Huerta, (internal quotation marks omitted))); see also SAS Inst., Inc. v. Iancu, ). The witness further argues that Section 36 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 37 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 51 of 109 used in a precatory rather than binding sense, we presume differences in language in same statutory provision to convey differences in meaning. Concord Mem. at 32 (citing Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (alterations and internal quotation marks omitted)); see also Lopez v. Davis, 531 U.S. 230, 240 41 , contrasts with , the context of this provision in the regulatory scheme. Since Section 600.7(b) does not expressly ctions, the witness reads the provision to allow the Attorney General merely to give a Special Counsel nonbinding advice and inform Congress whenever the Special Counsel fails to heed that advice. For the reasons that follow, however, Section 600.7(b), while no model of clarity, properly is read in the context of surrounding provisions and the historical background against which the regulations were enacted to allow the Attorney General to countermand a King v. Burwell words or phrases may only become evident when placed in Id. (quoting FDA v. Brown & Williamson Tobacco Corp. context y scheme, and fit, if Brown & Williamson, 529 U.S. at 133 (internal ambiguous in isolation is often clarified by the remainder of the [] scheme because only one of 37 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 38 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 52 of 109 the permissible meanings produces a substantive effect that is compatible with the rest of the Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) (internal quotation marks omitted). In a Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks omitted). 17 As an initial matter, Section be pursued is advisory rather than mandatory. See Am. Petroleum Inst. v. EPA, 684 F.3d 1342, 1348 United States v. Montgomery, 462 F.3d 1067, 1069, 1070 n.2 (9t might be especially disposed to use United States v. Paladino United States v. Smith, 282 F.3d 1045, 1048 (8th Cir. 2002) (concluding that the term as a mandatory rather than advisory meaning, notwithstanding the as mandatory and one as advisory); United States v. Anderson, 798 F.2d 919, 924 (7th Cir. 1986) (construing the McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 347 (8th Cir. 1985) ( [T]he 17 Although the cases cited in this paragraph concern statutory interpretation, the principles they express are no less applicable to interpreting regulations. 38 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 39 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 53 of 109 omitted)); Doe v. Hampton Bord v. Rubin, No. 97 y or a permissive direction. Rather, the the regulations were enacted, commonly was used in both mandatory and advisory senses. See, e.g., MERRIAM-WEBSTER S COLLEGIATE DICTIONARY owed, was obliged to, ought to to express obligation, prop added)); see also Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries, 16 GREEN BAG 2D 419, 423 27 (2013) (identifying Merriam- period 1951 (10th eral courts have permissive meaning. See Montgomery, 462 F.3d at 1070; McDonnell Douglas Corp., 758 F.2d at 347; Bord, 1998 WL 420777, at *5. so inappropriate or unwarranted under established Departmental practices that it should not be b) (emphasis added), parallels Section 600. id. § with a proposed action over the Attorney id., to remove the Special Counsel. As 39 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 40 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 54 of 109 Edmond incentivizing strongly a 28 C.F.R. § 600.7(b). The authority to tell a Special Counsel to refrain, upon pain of removal, from taking a particular course of action is in substance a power to countermand a Special necessary to make a Special Counsel an inferior officer. To be sure, although the Attorney General may advise against an action that violates id. § 600.7(b), the Attorney General may remove a Special Counsel id. § 600.7(d). Not all Department of Justice practices not itself warrant removal. However, whether a practice is so established as to constitute a policy, such that the practice fies removal, is itself a judgment call the regulations See id. §§ 600.7(d), 600.10. Moreover, the Attorney General has authority to establish new departmental policies violation of which would just Id. rising to the level of a violation of departmental policies. Id. The Attorney General thus has an effective power to countermand a actions by threatening removal for defying ion should not be pursued. action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as 40 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 41 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 55 of 109 specified in .F.R. § 600.7(b). Section 600.9(a)(3), in turn, directs the Id. § 600.9(a)(3). This provision ensures that the Attorney General will be the Attorney General to refrain from interfering unnecessarily. To read Section 600.7 to give the Attorney General no ability to countermand a Special Counsel, through the implied threat of removal for taking an action the Attorney General disapproves, would mean the Attorney tigation has ended. By that time, however, a Special Counsel will be out of office, and thus largely unaccountable to Congress for actions he A Special Counsel, knowing Congress will not learn of his defiance until he already has left office, thus would have little incentive to heed the 600.7(b) thus would misalign (1) the authority to decide whether to proceed with an action and on an officer who no longer holds office. A comparison of the regulations at issue to those that governed the Watergate Special Prosecutor and to the statutory provisions that governed the Independent Counsel reinforces that the Attorney General may countermand a Special Counsel through the threat of removal. The Watergate Special Prosecutor regulations, while in many other respects similar to the instant regulations, contained several provisions wholly missing in the instant regulations, including that or all matters falling within the jurisdiction of 41 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 42 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 56 of 109 removed from his duties except for extraordinary improprieties on his part and without the President s first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and Establishing the Office of Watergate Special Prosecution Force, 38 Fed. Reg. 30,738, 30,739 (Nov. 7, 1973). Likewise, provisions ey General, and all other officers and employees of the Department of Justice [to] suspend all investigations and matters the Independent Counsel was investigating, except as necessary to assist the Independent Counsel. 28 U.S.C. § 597(a) (expired). The Special Counsel regulations contain no language of this sort. Neither the Watergate Special Prosecutor s so inappropriate or unwarranted under established Counsel regulations, on one hand, and the Watergate Special Prosecutor regulations and Independent Counsel provisions, on the other hand, shows that 28 C.F.R. § 600.7 empowers the Attorney General to countermand a Special Counsel as he could not have countermanded the Watergate Special Prosecutor or Independent Counsel by drawing a line in the sand as to which actions the Special Counsel may pursue and removing a Special Counsel who crosses that line. ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney 42 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 43 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 57 of 109 General (or the Acting Attorney General if the Attorney General is personally recused in the Id. Auer v. Robbins, 519 U.S. 452, 461 (1997). Even if Auer did not apply, the understanding of how the regulations operate lends further support to the notion that a reasonable person would read Section 600.7(b) as authorizing the Attorney General to countermand a s actions. For these reasons, Section 600.7(b) properly is read to allow the Attorney General to countermand, through an implicit threat of removal or else through actual removal, a actions. As such, a power to render a final decision on behalf of the United States unless permitted to do so by other Edmond, 520 U.S. at 665. Concord Mem. at 35. dereliction of duty, incapacity, conflict of int id. (quoting 28 C.F.R. § 600.7(d)) Morrison, through the Attorney General, retains ample authority to assure that the [officer] is competently Id. at 692 93. 43 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 44 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 58 of 109 The Supreme Court repeatedly See id. at 671 disability, mental incapacity, or any other condition that substantially impairs the performance of , to be an inferior officer); Freytag notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in United States v. Perkins, 116 U.S. 483, 484 (1886) (holding naval service officers to be inferior officers and uphol 18 the sentence of a court- Bowsher v. Synar see also Freytag, 501 U.S. at 912 (Scalia, J., dissenting) (noting that the statute governing Tax Court Special Trial l language). Section 600.7(b) is, if anything, more permissive than the statutes upheld as constitutional in Morrison, Freytag, and Perkins.19 18 Morrison Attorney General to remove the Special Counsel PHH Corp. is instructive. Limiting the Consumer Financial 19 U.S (Griffith, J., concurring in understood or dictated by the President opera Id. at 134. This standard, ing] in the President sufficient supervisory power Id. at 134 35, 137. Section 600.7(d) is phrased no less broadly. The CFPB 44 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 45 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 59 of 109 Even Justice Scalia, whose words the witness cites, see generally Concord Mem., would not have taken issue with Section 600.7(d). While Justice Scalia objected to good- s to inferiority with subordination); id. at 719 (same); id. officer cause , id. at 724 n.4.20 The regulations satisfy this standard because, as explained above, Section 600.7(d) allows the the Special Counsel a principal officer.21 U.S.C. § 54 the above reasons; the Special Counsel also may Id. 20 Perkins, 487 U.S. at 724 n.4, which, as noted, affirmed the lawfulness of a statute l 21 Even if Section For example, PCAOB, having held unconstitutional limits on Public Company Accounting Oversight Board restrictions and otherwise leave the Board operative. 561 U.S. at 508 10. With these restrictions invalidated, Edmond Id. at 510. PCAOB Though PCAOB invalidated the removal restrictions before considering the Appointments Clause argument, there is no reason to believe PCAOB would have reached a different result on the merits had it taken up the Appointments Clause issue first. Intercollegiate, following PCAOB principal officers, and that the proper remedy was to sever the for-cause removal provision, rendering such judges 41 (internal quotation marks omitted). Intercollegiate, like this matter, involved an Appointments Clause claim rather than a removal power claim. Id. at 1336 37. Later, PHH Corp., also following PCAOB -cause restriction on the rather than the CFPB. 839 F.3d at 38 39, , 881 F.3d 75 (D.C. Cir. 2018). Strengthening the case for severing Section fact that the removal provision here is a product of regulation, enacted against a statutory backdrop of unfettered removal power. See PCAOB, 561 U.S. at 509; Myers, 272 U.S. at 119; Hennen, 38 U.S. (13 Pet.) at 259. 45 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 46 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 60 of 109 The wit Edmond Counsel to obtain the approval or permission of the Attorney General before making final decisions about who to investigate, indict, and prosecute, however, for the claim that an officer, to have infer prior to making such investigative or prosecutorial decisions. Rather, Edmond suggested that a actions an inferior already has taken suffices to enable the 64. Indeed, officers 22 held to be inferior make significant To require a superior officer personally to approve all significant decisions made by one United States v. Germaine, 99 U.S. 508, 510 (1878), inferior officers he directs and supervises, moreover, would be infeasible given the realities of modern governance. The Acting Attorney 22 These include (1) members of the Public Company Accounting Oversight Boar of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professio standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplina with any registered firm, and money penalties of $15 million ( PCAOB, 561 U.S. at 485 (internal quotation marks omitted); (2) Coast Guard Court of Criminal Appeals judges, who render decisions in -martial proceedings that result in the most serious sentences, including those in which the sentence, as approved, extends to death, dismissal, dishonorable or badr Edmond, 520 U.S. at 662 (alterations and internal quotation marks omitted); (3) Tax Court the deficiency or claimed overpayment does not exceed $10,000, Freytag, 501 U.S. at 873 (internal quotation marks proceedings and other investigations, participating in civil and criminal court proceedings and litiga prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all as Morrison, 487 U.S. at 662 (internal quotation marks omitted). 46 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 47 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 61 of 109 U.S.C. § 510, set out in the Appointment Order, so long as not withdrawn, constitutes the s, indictments, and prosecutions within the scope of the authority conferred. That a Special Counsel need not a Finally, the witness argues that because the regulations create no legally enforceable rights, see supervision of the Special Counsel, n whether the regulations (1) create enforceable rights and (2) have binding legal effect are separate issues. Nixon, 418 U.S. at 695. The regulations have legal effect even if t investigations and prosecutions, In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1153 (D.C. Cir. 2006); see also id. at 1152 (collecting cases that held similar no-rights-creating regulatory language to be effective, without concluding that such language stripped the confer Id. at 1153. The regulations have binding legal effect even though they create no rights enforceable in a private right of action. Morton v. Ruiz, which declared incumbent upon agencies to follow their own procedures . . . even where the internal procedures and 47 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 48 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 62 of 109 which the witness cites, see Concord Mem. at 48, is not to the contrary. The regulations in Ruiz a intended to bene Judith Miller, 438 F.3d at 1154 (quoting Ruiz, 415 U.S. at 235). applicability, id., to regulations that expressly disclaim any intent to create beneficiaries. More fundamentally, whether or not the regulations have binding legal force simply is explained above, the Attorney General derives such authority from statute, not the regulations. See supra Part III.B.1.a. Were the witness correct that Section -enforceable-rights language renders the regulations legal nullities, then, the Attorney General would retain plenary power to supervise the Special Counsel under 28 U.S.C. §§ 509 and 510. In fact, the witness in monitoring the Special Counsel is exactly what makes the Special Counsel an inferior officer. See Edmond, 520 U.S. at 663. For these reasons, the Attorney General has broad powers 2. The Other Morrison Factors All Weigh Toward Inferior Officer Status Given that th whether the remaining three Morrison factors need be considered is doubtful in Edmond PCAOB concluded that Public Company Accounting Oversight Board members are inferior officers based solely on Edmond direction and supervision test, without considering any of the remaining Morrison factors or even discussing Morrison at all. 561 U.S. at 510. PCAOB asserted that Edmond 48 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 49 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 63 of 109 id. (alterations and internal quotation marks omitted), language that suggests no other factor is relevant to the principal-inferior officer inquiry. Edmond itself concluded that Coast Guard Court of Criminal Appeals judges were inferior officers based solely on their direction and supervision by others, despite that all three of the remaining Morrison factors weighed toward principal officer status. 520 U.S. at 661 66; see also NLRB v. SW Gen., Inc., Morrison in Edmond, it is difficult to see how Morrison s nebulous approach survived our opinion in Edmond .23 Nonetheless, gi whether Morrison remains good law or is superseded by Edmond, the remaining Morrison factors whether an officer is limited in duties, jurisdiction, and tenure, 487 U.S. at 671 72 are considered in turn. As exp inferior officer status. a. Limited Duties As to the Morrison factor that assesses any limits on formulate policy for the Government , the Special Id. at 671. The Special Counsel may wield only such power as the Attorney Gen 28 U.S.C. investigation confirmed by then-FBI Director James B. Comey in testimony before the House 23 Edmond criticized the majority for holding that an officer who has a superior is an and concurring in the judgment), the majority did not indicate that Justice Souter had misunderstood its holding. 49 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 50 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 64 of 109 duties, though broad, are limited by statute, see assertion otherwise, see Concord Mem. at 37 and include no policymaking power. By way of comparison, the Independent Counsel dent and Vice President, Cabinet level officials, certain high-ranking officials in the Executive Office of the President and the Justice Department, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials involved in [other] persons . . . if an investigation by the Attorney General or other Department of Justice Morrison, 487 U.S. at 660 n.2 (quoting 28 U.S.C. § 591(a) (c) (expired)). The clearly greater thority is not s, and arguably is lesser. To be sure, , id. at 671, the Acting Attorney General has authorized the Special Counsel to perform include significant investigative and prosecutorial responsibilities, see Appointment Order ¶¶ (b), (c). That the by no means implies that such duties are trivial. See Edmond, 520 U.S. at 662 (noting that significant authority pursuant to the laws of the United States (internal quotation marks omitted)). The question is not whether the Special Counsel significant or trivial, however, but whether those duties are limited. See Morrison, 487 U.S. at 671. They are. to those of persons held to be inferior The witness compares officers in an effort to demonstrate that the Special Counsel duties are greater, but this effort falls flat. For example, the witness asserts that the Special Counsel 50 greater than Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 51 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 65 of 109 those of the Independent Counsel because the Independent Counsel investigated only a single testimony . . . to Congress on a particular date. Concord Mem. at 36 (citing Morrison, 487 U.S. at 666 67). This is irrelevant, however, as Morrison determined the looking to the breadth of her statutory authority rather than to any particular investigation the Independent Counsel pursued. See 487 U.S. at 671 by the Act to perform only certain, limite a]n ); see also id. not the particulars of the investigation at issue (emphasis added)). If the are not too weighty to be vested in an inferior officer, the same is tru Along these lines, the witness contends that the Special Counsel, unlike the Independent Counsel, can formulate policy, which he has done alleged electioneering activity on a theory . . . that has never been brought before in any reported The ability to raise a novel legal theory, however, is not the same as policymaking power, which, as discussed above, the Special Counsel lacks. See Appointment Order ¶¶ (b), (c). At most, the witness could argue that the Special Counsel has made policy without authorization. This argument would fail, however, as it mistakenly conflates setting policy with merely raising a new legal theory. The witness also asserts, as to the Special of Justice guidance requiring willfulness for a charge under 18 U.S.C. § 371 of conspiracy to violate election laws based on alleged Even assuming this allegation were true, such conduct is not the same as formulating new policy. 51 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 52 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 66 of 109 In another comparison, the witness argues whom the witness asserts are principal officers. at 15.24 The witness does not explain why either of these officers are principal officers. The Supreme Court has indicated, albeit in dicta, that a U.S. Attorney is an inferior officer, see Myers, 272 U.S. at 159, and at least two Circuits have agreed, see United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000); United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999).25 Even assuming Assistant Attorneys General and U.S. Attorneys are principal officers, this would not establish that the Special Counsel is a principal officer himself, as the witness fails to show that the Special Counsel s duties are greater than, or even equal to, those of Assistant Attorneys General or U.S. Attorneys. The assertion that the Special Counse U.S. Attorneys rests on the claim that the Special Counsel (1) and (2) can seek indictments of foreign citizens and Witness Mot. at 15. Both are true of U.S. Attorneys as well S.C. § 547(1), including for offenses committed by foreign citizens and corporations. The Special Counsel, in contrast, is authorized to investigate and prosecute a far smaller set of offenses. See Appointment Order ¶¶ (b), (c). Although a U.S. Attorney may only 24 Elsewhere, the witness asserts that the Special Co Attorneys General. See greater than those of Assistant 14. This claim is incorrect; as explained above, the Attorney General exercises significant oversight and control over the Special Counsel. 25 The witness concedes that an interim U.S. Attorney appointed by a district court may be an inferior officer, bu 28 U.S.C. § 546(d). A Special Counsel, mea Morrison, 487 U.S. at 672. In any event, if an officer who wields the power of a U.S. Attorney cannot be an inferior officer, as the witness insists, an interim U.S. At ad hoc 52 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 53 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 67 of 109 prosecute defendants over whom venue lies 28 U.S.C. § 547(1); see also U.S. CONST. amend. VI; FED. R. CRIM. P. 18, this limit does not significantly restrict a U.S. investigative authority, given the ability to refer an investigation to another U.S. Attorney for prosecution, see U.S. ATTORNEY S MANUAL § 9-27.200 (instructing attorneys to 26 Meanwhile, the witness does not explain how a Special Counsel is greater than or equal in duties to an Assistant Attorney General at all, other than a conclusory assertion that both wield significant power. See As a final comparison, the witness argues that the Special Counsel is more powerful than Copyright Royalty Judges, whom Intercollegiate held to be pri at 16. Intercollegiate held Copyright Royalty Judges to be principal officers because (1) the Librarian of Congress and Register of Copyright f[e]ll short of the kind that would render [such judges such removal was limited to misconduct or neglect of duty, and (3) no official could countermand decisions. 684 F.3d at 1339 40. As discussed above, the Special Counsel differs from the Copyright Royalty Judges by satisfying all three of these factors. b. Limited Jurisdiction As to the next Morrison factor 487 U.S. at 672. Morrison reasoned . ot only is the [EIGA] itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the 26 Although Section 9-27.200 specifically contemplates circumstances in whic U.S. ATTORNEY S MANUAL § 9-27.200, the attorney also may deem referral to be warranted where the attorney believes a person has committed a federal offense outside her or his jurisdiction. 53 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 54 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 68 of 109 Special Division pu Id. A Special Counsel likewise can act only within the scope of the jurisdiction the Attorney General granted through the Appointment Order and any additional jurisdiction the Attorney General chooses to confer. See Appointment Order ¶¶ (b), (c). A U.S. Attorney, who can investigate and prosecute any federal crime, 28 U.S.C. § 547(1), has far broader jurisdiction. tion in Morrison focused on a single person, who was then out of government, and that the Attorney General had conducted his own preliminary investigation prior to was necessary. Concord Mem. at 38. Morrison, however, determined that the Independent jurisdiction was limited solely by assessing the scope of the formal investigatory and prosecutorial powers, not who or how many targets the Independent Counsel investigated or whether the Attorney General conducted any prior investigation. See 487 U.S. at 672. The witness further notes that the Attorney General enjoyed unreviewable discretion to decline to allow the Independent Counsel to investigate other officials. Concord Mem. at 38. A delegate to a Special Counsel certain responsibilities but not others likewise is unreviewable. c. Limited Tenure The final Morrison factor also weighs in favor of inferior officer status because the . Morrison single task, and when that task is over the office is terminated, either by the counsel herself or by 54 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 55 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 69 of 109 action of the Special Divisio Id. the no ongoing responsibilities that extend beyond the accomplishment of the mission that she was Id. The Special Counsel id. confirmed by then-FBI Director James B. Comey in testimony before the House Permanent ral crimes arising from the i Appointment Order ¶¶ (b), (c). position will be Morrison, 487 U.S. at 672, once this task is complete. To conclude that the Special Cou Counsel office rary in the sense that the Special id., does not conflict with recognizing the Special Counsel as an officer of the United States, who continuing Lucia, 138 S. Ct. at 2051 (internal quotation marks omitted, emphasis added). Lucia suggested that one holding a position may not qualify as an officer at all, but only as an employee. Id. Temporary has a somewhat different meaning in the context of Morrison officer test than in the context of Lucia -inferior -employee test, however; indeed, if the term Morrison would always weigh toward principal officer status, as a determination that one is an officer in the first place requires is Instead, for purposes of determining whether an officer is principal or inferior, a position duration, i.e., the position limited in . Morrison, 487 U.S. 672. For purposes of determining whether one is an officer of any kind, however, a position is if are Germaine, 99 U.S. at 512 Freytag, 501 U.S. at 881. Germaine, 55 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 56 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 70 of 109 for example, held that a Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination, was a mere employee rather than an officer. Germaine, 99 U.S. at 512. The Morrison, 487 U.S. 672, but it is not occasional, intermittent, or episodic, as the ing and regular until complete. The witness argues that -reaching and could involve countless lines of investigation, many of which . . . are far afield from the Russian government Mem. at 39, but that is neither here nor Morrison statute or regulation the investigation will apparently continue until the Special Counsel Independent Counsel. Morrison, 487 U.S. at 672. * * * In sum, the remaining Morrison factors, i inferior officer status. 3. and Functions On a final note, not satisfied with the outcome under the Morrison or Edmond tests, the witness has come up with his own test for identifying principal officers under the Appointments Clause. Specifically, he contends that some officers have the chain of command might be, are too significant to bear the at 17. The Special Counsel, the witness contends, is such an 56 that, whatever Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 57 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 71 of 109 prosecutorial power that he must be a principal officer, even if he otherwise satisfies Edmond and Morrison. at 14. difference here, as the degree of power the Special Counsel enjoys is entirely consistent with inferior officer status, for the reasons explained above. proposed test should not be adopted, however, as that test runs contrary to binding precedent, is historically unsound, and supplies no determinate, judicially-manageable rule of decision. argument. Edmond directed and supervised at some level by others who were appointed by Presidential nomination no room for exceptions one who satisfies each element of the definition is an inferior officer. Edmond [g]enerally speaking Id. at 662. speaking, 24. However, PCAOB later omitted the term in characterizing Edmond to have ds on whether he has a superior. 561 U.S. at 510 (alterations omitted). Thus, even if Edmond suggested possible PCAOB clarified otherwise. The witness no officer 57 Edmond Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 58 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 72 of 109 views thus are not the law. Aside from Justice Sout Edmond concurrence, the witness cites no case law to support his proposed test. The witness raises several historical arguments, but none have merit. First, the witness notes that when the Excepting Clause was proposed at the Constitutional Conventi Superior Officers below Heads of Departments ought in some cases to have the appointment of the THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 627 (Max Farrand RECORDS (emphasis added). Gouverneur Morris responded, necessity. Blank C Id. id., the witness infers that the Framers contemplated principal officers directed and supervised by other principal officers, meaning direction and supervision does not necessarily make one an inferior officer 20. The witness also contends were understood Id. Justice Scalia also read sufficient status that one be subordinate to a principal officer. Even an officer who is subordinate to a Morrison, 487 U.S. at 722 (Scalia, J., dissenting). Put aside that the Constitut id. at 720, that the term id. id., and that 58 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 59 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 73 of 109 there is little indication that anyone at the Convention but Morris agreed with Madison. The that exclusive groups, such that a superior officer necessarily is not an inferior officer and vice versa. See id. ). A thing can be both superior and inferior at the Ocasio v. United States, 136 S. Ct. 1423, 1441 (2016); see also Electromation, Inc. v. NLRB, 35 F.3d 1148, 1162 (7th Cir. 1994) t and the object for their Ms. A directs and supervises Ms. B, who directs and supervises Mr. C. One fairly could say that Ms. B is both a superior officer and an inferior officer, as she directs and supervises Mr. C and is herself directed and supervised by Ms. A. If Edmond, 520 U.S. similarly depends simply on whether one has an inferior. For any chain of command, everyone but the person at the very top and the person at the very bottom can be both superior and inferior, with only the person at the very top being a solely superior officer (i.e., a principal officer) and only the person at the very thus provide no basis to conclude that the degree of power an officer wields, rather than where an officer falls in the chain of command, determines principal or inferior office status.27 27 Morrison sufficient majority opinion in Edmond, which otherwise adopted the principal-inferior officer test Justice Scalia had proposed in Morrison, did not include this qualifier, but instead articulated a clearer bright-line rule. Nor could this have been Edmond essary for 59 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 60 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 74 of 109 Second, the witness argues that during the Founding Era, English and state courts often or -matter jurisdictions, without regard to whether they reviewed or were reviewed by other courts. , 66 IND. L.J. 457, 466 72 (1991)). The Constitution, however, uses Morrison, 487 U.S. at 719 (Scalia, J., me U.S. CONST. art. III, §§ 1, jurisdiction, see id. § 2, cl. 2, such exceptions are, by definition, exceptional rather than the rule. THE FEDERALIST NO. 81, at 485 n.*, 486 (Alexander Hamilton) (Clinton Rossiter ed., 1961). In Federalist No. 82, meanwhile, Hamilton variously referred to the in THE FEDERALIST NO. 82, at 492, 494 95 (Alexander Hamilton) (Clinton Rossiter ed., 1961) or more (quoting 1 RECORDS, supra, at 21 (emphasis added)). Putting aside that Morrison back at him, to no avail. See id. (citing Morrison, 487 U.S. at 722 (Scalia, J., dissenting)). Perhaps Justice Scalia had come to reconsider this aspect of his Morrison dissent. 60 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 61 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 75 of 109 U.S. CONST. art. III, § 1, having is no less consistent with hierarchy and subordination than is having multi epartments id. art. II, § 2, cl. 2. Multiple courts each can be and none have appellate jurisdiction over one another. Historical evidence thus shows that Article III used the terms that Article II did so as well. [of] treating Deputy and Assistant Cabinet Secretaries as Princip[al] t 19, but fails to support this assertion with any authority.28 The DAG, the Solicitor General, the Assistant Attorneys General, and non-interim U.S. Attorneys are principal Id. This litigation presents no need to determine whether any of these officers are principal or inferior, as the a Special Counsel gives the Attorney General greater direction and supervision over a Special Counsel than over any of these officers. See supra Part III.B.1.a.29 The witness claims that some officers are so important that they at 14. Congress, however, is free to advice-and-consent process appointments to the this, indeed, Edmond, 520 U.S. at 660. Should Congress decide that an officer whose appointment 28 th -sequitur the fact that only the President can remove a Cabinet Secretary cuts in favor of, not against, Cabinet Secretaries being principal officers. 29 The same is true with Intercollegiate 61 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 62 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 76 of 109 U.S. CONST. art. II, § 2, cl. 2, should instead be subject to senatorial confirmation, Congress is free to pass a law to that effect. impeach likewise is not textually limited to principal officers. See id. art. I, §§ 2, cl. 5, 3, cl. 6, art. II, § 4.30 Finally, their direction and supervision in advice and consent of the Senate. Edmond, 520 U.S. at 663; see also Morrison, 487 U.S. at 724 i.e., subject to the supervision of, principal officers who (being removable at will) have the Presiden , indeterminate, and unadministrable to provide a workable standard for resolving disputes over who is an inferior officer. How much power, exactly, an officer must wield before ceasing to qualify as inferior is not only unclear but in any realistic sense altogether unknowable. The witness produce not coherent, consistent analysis but a body of Smith v. Allwright, 321 U.S. 649, 669 30 be removed from Office on U.S. CONST. art. sed in Sections 2 and 3, are coextensive is an unsettled question. Joseph Story, writing in Commentaries on the Constitution of the United States, believed th who hold their appointments under the national government, . . . in the highest or in the lowest departments of the JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 792, at 558 (Thomas M. Cooley ed., 4th ed. 1873) (1827). Likewise, early American lawyer William Rawle asserted that those subject to impeachment include WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 213 (2d ed. 1829) (1825). The view that impeachment extended to all officers of the United States was not unanimous, however. At the North Carolina Ratification Convention, for example, Archibald Maclaine asserted JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 43 62 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 63 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 77 of 109 (1944) (Roberts, J., dissenting). Indeed, the is plagued by the very same characteristic Justice Scalia criticized in Morrison ungoverned 487 U.S. at 712, 733 (Scalia, J., dissenting). The witness offers little guidance on this front, variously asserting that an officer cannot at 14; see also id. Attorneys, the Deputy and Assistant Cabinet secretaries, or lower fede id. at 17; see also id. id. id. at 19, 20. Other exercis[es] much more power than id. id. y circular, failing to provide any guidance whatsoever as to which powers are too great for an inferior officer to wield. The witness acknowledges that, as Edmond laws of the United Stat id. at 23 t marks officer status and the extraordinary authority and power that marks principal rather than inferior 63 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 64 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 78 of 109 id. at 17. This is an understatement. To thread the enjoy, Edmond angels dancing on the head of Kedra v. Schroeter, 876 F.3d 424, 446 n.17 (3d Cir. 2017). 31 The need for objective, determinate, and administrable rules to differentiate between principal and inferior officers is particularly pressing given the role principal officers can be called upon to play at times of national emergency. The Twenty-Fifth Amendment provides: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. . . . U.S. CONST. amend. XXV, § 4 (emphasis added). The Twenty-Fifth Amendment was ratified with . . . concerns over the heal ONG. RES. SERV., 31 Lucia, 138 S. Ct. at 2051. However, the indeterminacy of asking merely id. not 64 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 65 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 79 of 109 RS20260, PRESIDENTIAL DISABILITY: AN OVERVIEW 3 (July 12, 1999). In particular, the Id. Section 4 authorized Congress to designate by law a body to determine, along duties. U.S. CONST. amend. XXV, § 4, cl. 1. Section 4 did not assume that Congress would Id. The delicacy and urgency of any circumstance in which Section 4 would be invoked creates great need for a conclusive and easily-administrable test to determine speedily who is and [] id., entitled to vote on questions of presidential removal. Any delays in the Section 4 process to deliberate at length over whether one or more particular officers are entitled to participate could exacerbate and extend the crisis over presidential leadership, while any lingering uncertainty as to whether any officers who participated in that process were entitled to do so inevitably would cast a pall of illegiti tenure, especially if the vote on removal was decided narrowly. While the political question doctrine might shield the Section 4 process from any judicial review, see Baker v. Carr, 369 U.S. 186, 217 (1962) ( without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of contexts in which a dispute might raise non-judicially reviewable political questions), judicial hardly would erase the stain of illegitimacy a suspect Section 4 process might leave on the public imagination. 65 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 66 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 80 of 109 Edmond , while not altogether free of indeterminacy in close cases, is far more amenable to straightforward and conclusive application than the nebulous powers standard, , which requires helplessly subjective judgment calls as to just how much power is too much for an inferior officer to wield.32 Edmond test thus facilitates a quicker and more certain identification of particular kind of national crisis this constitutional amendment guides. test, in contrast, would only exacerbate and prolong confusion during such times, and potentially cast doubt on the legitimacy of an eventual resolution. The Twenty-Fifth Amendment thus provides additional reason to believe Edmond inferior officer -line principalindeterminate standard.33 * * * 32 Opinion U.S. CONST. art. II, roposed principal-inferior officer test would generate confusion as to whom the Opinion Clause covers, although such confusion would be less problematic than that which would arise in the Twenty-Fifth Amendment context, as the President could always obtain principal officer to procure an opinion from her subordinate, or else by directing the relevant principal officer to however far down the chain of command is necessary. Uncertainty as to which officers are entitled to vote on questions of presidential removal, in contrast, has far more dire implications. 33 500 Executive Branch officials could be . 24:7 16. When confronted with the Twenty-Fifth ng that such distinct from principal and inferior officers. Id. at 27:11 28:22. This argument, which the witness raised for the first time at oral argument, fails because the Constitution recognizes no distinct third category of non-principal, nonbut such an officer necessarily also either (1) is directed and supervised by another, and thus inferior, or (2) is not, and thus is a principal officer. Thus, all officers are principal or inferior. 66 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 67 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 81 of 109 His appointment, without presidential appointment and senatorial confirmation, thus did not violate the Appointments Clause. C. General The Excepting Clause 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 U.S. CONST. art. II, § 2, cl. 2. The witness argues that if the Special Counsel is an inferior officer, he was not properly appointed as such because Congress has not id., vested in the Attorney General the power to appoint a Special Counsel. This is incorrect, as two statutes 28 U.S.C. §§ 515(b) and 533(1) vest in the Attorney General the power to appoint a Special Counsel. 34 Excepting Clause. 1. 28 U.S.C. § 533(1) The DAG appointed the Special Counsel as a certain Id.; see Appointment Order ¶¶ (b), (c). 34 At oral argument, the Court asked the witness whether any statutes, if not Sections 533(1) and 515(b), authorize the Attorney General to appoint Trial Attorneys to staff nonDepartment of Justice and instructed the witness to file later that day a letter identifying such statutes. r. at 10:11 12: which the witness denies authorizes the Attorney General to appoint any attorney, see 12; (2) 28 U.S.C. § 533, which the witness denies authorizes the Attorney General to appoint any attorney, see Reply at 6 7; (3) 28 U.S.C. § 541, which authorizes the President to appoint U.S. Attorneys; (4) 28 U.S.C. § 542, which authorizes the Attorney General to appoint Assistant U.S. Attorneys; (5) 28 U.S.C. § 543, which authorizes the Attorney General to appoint attorneys to assist U.S. Attorneys; and (6) 28 U.S.C. § 546, which authorizes the Attorney General and district courts to appoint Interim U.S. Attorneys, see y authority to appoint any of the hundreds of Trial Attorneys at Main Justice who do not assist a U.S. Attorney. 67 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 68 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 82 of 109 Although specifically mention special counsel, a statute need Edmond, 520 U.S. at 656; see also id. (construing 49 U.S.C. § 323(a), which appoint and fix the pay of officers and plain language swept broadly enough to reach such officers). Section 533(1) is if anything more specific than the statute in Edmond authorizing the Secretary of Transportation to appoint Coast Guard judges. Nixon Nixon, in specifically to explain Id. at 694 (citing 28 U.S.C. § 533, among other statutes).35 While no party in Nixon had disputed that Congress had authorized the Attorney General to appoint the Watergate Special Prosecutor, Nixon Section 533 provided such authority was necessary to the conclusion that a justiciable controversy existed between the President and the Watergate Special Prosecutor, and thus was not mere dicta. See Six Cos. of Cal. v. Joint Highway Dist. No. 13 of Cal., 311 U.S. 180, 187 35 Although Nixon did not specify the subsection of Section 533 pursuant to which the Watergate Special Prosecutor was appointed, Section 533(1) seems to be the most natural choice, as the other subsections authorize the such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney (4). The witness criticizes the Special Counsel for failing to cite Sections 533(2) and 533(3), which authorize the appointment of officials to protect the President and Attorney 7. The Special Counsel does not discuss these statutes because the Special Counsel does not rely upon them, and the witness does Special Counsel disclaimed reliance on Section 533(4), H 21, which allows the Attorney General to appoint officials the Department of State as may be directed by the Attorney Gene provision is needed either. 68 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 69 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 83 of 109 ). The witness argues , however, often are used virtually interchangeably. See, e.g., BLACK S LAW DICTIONARY as MERRIAM WEBSTER S COLLEGIATE DICTIONARY (10th ed. 1993 as ompass an attorney is untenable, as Section 533(1) authorizes the as a word choice broad enough to cover any Department of Justice officer or employee, and reaches the Special Counsel. only authorizing the Attorney General to appoint Reply at 6 7. Section 5 officials who detect and prosecute crimes against the Unit 533(1), naturally reach beyond the appointment of FBI officials. See, e.g., Nixon, 418 U.S. at 694; United States v. Hasan, 846 F. Supp. 2d 541, 546 n.7 (E.D. Va. 2012), d, 718 F.3d 338 (4th Cir. 2013) (recognizing that Section 533(1) authorizes the Attorney General to appoint Bureau of Alcohol, Tobacco, Firearms and Explosives agents); United States v. Fortuna, No. CRIM. 12-636 NLH/JS, 2013 WL 69 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 70 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 84 of 109 1737215, at *2 n.8 (D.N.J. Apr. 22, 2013) (same). Although Section 533 is located in a chapter 28 U.S.C. ch. 33, nestled amidst statutes concerning the FBI, see, e.g., id. § 532 (providing for appointment of a Director of the Federal Bureau of Investigation meaning, which does not solely concern FBI officials. See, e.g., Merit Mgmt. Grp., LP v. FTI he plain meaning Consulting, Inc., 138 S. Ct. 883, 893 (2018) of a statutory , 554 U.S. 33, 47 (2008) Bd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528 29 (1947) (explaining titles and headings cannot undo or limit that which the Holland v. Williams Mountain Coal Co., 256 F.3d 819, 822 (D.C. Cir. 2001) cannot be limited by its title . . . provisions in a statute do not always align with its 36 Finally, the witness observes that the DAG did not cite Section 533 specifically in t 7. This is beside the point, however, as the DAG Acting Attorney General, including 28 U.S.C. §§ (emphasis added). In this way, the DAG invoked all his available statutory authority, not just the cited provisions, to appoint the Special Counsel. 36 conduct the investigation confirmed by thenofficials this standard, see Appointment Order ¶ (b). 70 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 71 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 85 of 109 2. 28 U.S.C. § 515(b) Section 515(b) also authorized the DAG to appoint the Special Counsel. Section 515(b) shall be commissioned as special assistant to the Attorney General or special attorney, and shall Section 515(b) thus plainly contemplates that the Attorney General has power to appoint special assistants to the Attorney General and , , 37 is synonymous in this c That Section 515(b) uses the past participle form specially specially retain, voice phrasing, ot limit rather than active application to attorneys who already have been retained under a separate statute, as the witness argues, see Witness Reply at 4. are routinely used as adjectives to describe the present Henson, 137 S. Ct. at 1722. Here, the term mean either spe is now can or previously had been The former construction is more sensible, as no other statute in existence at , was enacted authorized the Attorney General to appoint such attorneys. See supra Part I.A. Moreover, Section 515(b) does not require subject which might imply need for separate statutory authority, see, e.g., id. § 515(b). 37 Although Section 515(b) does not specify who 515(b), this power must belong to the Attorney General, as the attorneys in question id. id. § 509. 71 attorneys, 28 U.S.C. § id. § 503, Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 72 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 86 of 109 Section 515(b) is consistent with this construction. Section Id.38 Where the 515(b) provides that each specially- powers to appoint an officer and to commission that officer are vested in the same actor, signing the completes the (1 Cranch) 137, 157 (1803) See Marbury v. Madison, 5 U.S. T]he constitutional power of appointment . . . . has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission see also U.S. CONST. shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by 39 granting Commissions which shall expire at the End of their next Session. Section 515(b) thus authorizes the Attorney General to retain attorneys and to complete such those attorneys.40 history confirms this understanding. Before the DOJ Act was enacted, the Attorney General had no authority to hire attorneys to serve under his immediate command. 41 See supra Part I.A. -attorneys 38 Section 515(b) does not specify who possesses the power to commission specially-retained attorneys, but this power, like the power to retain such attorneys, see supra note 37, must belong to the Attorney General, both e 28 U.S.C. § 509. 39 Marbury sense, as Marbury long has been recognized to have settled the law in this area. See, e.g., Union v. Reagan, -five years, the rule as to when an (citing Marbury, 5 U.S. (1 Cranch) at 157)); Goutos v. United States, 552 F.2d 922, 924 long been the law that an appointment is not made until the last act required by the person or body vested with the appointment power is performed. Marbury)); Arco v. United States, 441 F.2d 1173, 1175 (Ct. Cl. 1971) executive could still refuse to complete the appointment, after Senate confirmation, by failing to prepare or sign the Marbury, 5 U.S. (1 Cranch) at 155 57, 162)); see also 2 STORY, supra, § 1553 n.1, at 363 Marbury Marbury 40 Nor can it be maintained that Congress has not authorized an attorney specially retained under Section 515(b) to wield the breadth of authority the Special Counsel possesses, as Section 510 expressly allows the Attorney the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General 41 The Attorney General could not even hire the two assistants the 1868 Act gave him; instead, these assistants were nominated by the President and confirmed by the Senate. See 1868 Act § 5. 72 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 73 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 87 of 109 DA Act § 2, but not to assist himself. The DOJ Act greatly expanded cement and litigation responsibilities, consolidating these responsibilities underneath the Department of Justice See generally DOJ Act. The Act created the position of Solicitor General, transferred various law officers from other departments into the Department of Justice, assigned the Department law-related responsibilities other departments previously had exercised, authorized the Department to conduct all litigation in which the government is interested in any federal court, and charged the Department with providing legal advice and counsel to all the other departments, which were Id. §§ 2 7, 14, prohibited from themselves employing attorneys 17. The Act also gave the Attorney General broad powers to manage the Department and to Id. §§ 4 6, 8, 11, 14. Section 17, using language that remains in Section 515(b) almost unchanged, contemplated that the Attorney General would assist in the trial of any case in which the government is interested and al assistant[s] to the Attorney- Id. § 17. In this context, Section 17 most naturally is read as a source of authority to appoint attorneys to serve under the Attorney immediate control. Indeed, no other statute then in existence authorized the Attorney General to appoint his own assistants. Failing to read Section 17 to provide such authority thus would render the statute superfluous and yield nonsensical results, allowing the Attorney General id., but denying the Attorney General any authority to appoint those attorneys in the first place. 42 42 At least one court, over one hundred years ago in another circuit, reached a contrary conclusion, construing Section 17 to provide the Attorney General no additional authority to appoint attorneys, but that opinion, United 73 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 74 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 88 of 109 Post-DOJ Act statutory history further confirms that Section 515(b) authorizes the Attorney General to appoint attorneys under his immediate control. As explained supra Part I.A, Rosenthal had held that only the district attorneys and their assistants could participate in grand jury proceedings. 121 F. at 865 69. The attorney at issue in Rosenthal Id. at 863. Congress the Attorney-General or any responded by enacting officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney- ... States v. Virginia-Carolina Chemical Co., 163 F. 66 (C.C. M.D. Tenn. 1908), which the parties neither cite nor discus provides for the arming of the attorneys and counsellors appointed under [Rev. Stat. 363] with commissions as evidence of their appointment, prescribes the character of oath they shall take, and defines their duties and Id. at 73 74 (quoting Rev. Stat. 363). The court thus construed Rev. Stat. 366 not to authorize the Attorney General to hire additional special assistants, but only to limit the power of attorneys appointed pursuant to Rev. Stat. 363. Id. This construction would support the view that Section 515(b) applies only to attorneys appointed under a separate statute, such as 28 U.S.C. § 542 (authorizing the appointment of Assistant U.S. Attorneys) or 28 Virginia-Carolina thus should be construed together, 163 F. at 73, was clearly erroneous. Section 2 was enacted in 1861, as part of the DA Act, and Section 17 was enacted in 1870, as part of the DOJ Act. Virginia-Carolina incorrectly found otherwise United States v. Crosthwaite, that the DOJ Act was codified in part at Rev. Stat. 363, w have supervision of their conduct and proceedings (quoting Rev. Stat. 363 (emphasis added)). The italicized language did indeed come from the DOJ Act, see DOJ Act § 16, but the rest came from Section 2 of the DA Act and is found nowhere in the DOJ Act. Virginia-Carolina thus erred in misreading Crosthwaite to say that Section 2 and Section appointed to assist the district attorneys were subject to its provisions. Specifically, Section 17 authorized the statute applies only to assistants to district attorneys. Id. § 17. The DOJ Act identified id., suggesting that their assistants likewise are distinct. The DOJ Act [were] associated to the id. § 3; see also id. § 9, but did not fold the district attorneys into the Department, providing id. § 16. Finally, Virginia-Carolina of that statute aggrandized the Attorney General. Section 17 thus more naturally is read, like every other provision of the DOJ Act, to expand rather than restrict the . 74 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 75 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 89 of 109 including grand jury proceedings . . . which district attorneys now are or hereafter may be by law authorized to conduct. 1906 Act. Congress enacted this Act specifically to overturn Rosenthal. See H.R. Rep. No. 59-2901, at 2 Rosenthal] makes the proposed legislation necessary if the Government is to have the benefit of the knowledge and learning of its Attorney-General and his assistants, or of such special counsel as the Attorney-General may deem necessary . . . . The law proposed by the bill under consideration seems to be very necessary, because of the decision in the Rosenthal 43 Congress specifically intended the Act to apply assistant[s] to the Attorney General, or special counsel States Attorney, particularly in cr substantial effect. S. Rep. No. 59-3835, at 1 (1906). Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (quoting Stone v. INS, 514 U.S. 386, 397 (1995)). Given that the attorney in Rosenthal had been appointed under Section see 121 F. at 868, the 1906 Act, currently codified at 28 U.S.C. § 515(a), properly is viewed as congressional confirmation that Section 515(b) authorizes appointment. To conclude otherwise Pierce Cty. v. Guillen, 537 U.S. 129, 145 (2003). that statute to authorize the Attorney General to appoint attorneys under his immediate control and repeatedly ratified that understanding. In 1930, Congress authorized the Attorney General to stants to the Attorney General. An 43 Even those in the House who voiced concerns over the 1 power to appoint special assistants, objecting only to letting such attorneys participate in grand jury proceedings. See H.R. Rep. No. 59by the Government of special counsel and the giving to such counsel all the rights and privileges named in the bill, save the right to appear 75 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 76 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 90 of 109 Act to Amend Section 366 of the Revised Statutes, Pub. L. No. 71-133, ch. 174, 46 Stat. 170, 170 (1930). The purpose, the House Report explained, was to end 71-229, at 1 (1930). provide authority for continued, but merely permits commissions to issue to attorneys as special attorneys in those cases where the Attorney General Id. Congress amended the statute once more in 1948 merely to simplify the See An Act to Revise, Codify, and Enact Into L -773, ch. 646, § 3, 62 Stat. 869, 985 86 (1948). Neither bill evidenced any concern over -then regular use of special counsels appointed under s predecessor. See Persico, 522 F.2d at 54. To the extent that the meaning was still unclear - that the statute authorized him to appoint special attorneys. Brown & Williamson, 529 U.S. at 144; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 40 interpretation of a statute and to adopt that interpretation when it re-enacts a statute without Lorillard v. Pons, 434 U.S. 575, 580 (1978)).44 44 The Special Counsel argues that 5 U.S.C. § citing two Circuits holding that Section 301 provides statutory authority for a Head of Department to create and Willy v. Admin. Rev. Bd., 423 F.3d 483, 492 (5th Cir. appoint inferior officers. See 2005); , 141 F.3d 625, 631 (6th Cir. 1998)). In both Willy and Varnadore, the Head of Department invoked Section 301 in conjunction with other agency-specific statutes to appoint inferior officers. See Willy, 423 F.3d at 491 92; Varnadore, 141 F.3d at 631 32. A more recent decision, United States v. Janssen, 73 M.J. 221 (U.S.C.A.A.F. 2014), questioned Willy easoning. Noting that Section 301, by its term Janssen concluded that construing Section 301 to authorize the appointment of Id. at 225. Janssen noted officials who make up the Office of the Secretary of Defense, and the procedures to be employed for their 76 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 77 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 91 of 109 3. In an effort to dispute that Section 515(b) and Section 533(1) authorized the Attorney General to appoint the Special Counsel, the witness contends that the Appointments Clause when vesting an inferior requires Congress to U.S. CONST. art. II, § 2, cl. 2; Concord 8. Neither the witness nor the authorities he cites offer a Mem. at 12 sound principle to justify such a rule. In any event, Sections 533(1) and 515(b) would satisfy such a rule. Courts generally require Congress to speak clearly to enact statutes that raise significant separation of powers concerns by giving to one branch authority that otherwise would belong to another. See Kucana v. Holder, 558 U.S. 233, 237 (2010) ( eparation-of-powers . . . caution us against reading legislation, absent clear statement, to place in executive hands authority to Franklin v. Massachusetts, 505 U.S. 788, 800 01 President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the .45 further noted s has established three positions within the Office of the Secretary and trouble of enshrining the positions in statute and providing for their appointment if, as the Government argues, the Secretary already has the authority under [5 U.S.C. § Id. Given that the Special Counsel lawfully was appointed pursuant to Section 533(1) and Section 515(b) without regard to Section 301, no resolution of this split of authority is necessary. 45 Courts impose a similar requirement as to statutes that expand federal authority into domains traditionally belonging to the states. See, e.g., Bond v. United States ause our constitutional structure leaves local criminal activity primarily to the States, we have generally declined to read federal law as Gregory v. Ashcroft (internal quotation marks omitted)). The witness cites Gregory, see 77 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 78 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 92 of 109 raises no t the expense of another branch, Freytag, 501 U.S. at 878, as inferior officers ultimately remain accountable to the President through the Article II chain of command, ensuring the s Clause was to preserve Edmond, 520 U.S. at 663. Burnap, which the witness cites in support of his proposed clear statement rule, see Concord Mem. at 10, is not to the contrary, as Burnap involved an employee rather than officer, and thus does not bear on the specificity with which Congress must tment in a Head of Department. 252 U.S. at 516 18. Indeed, while no specifically by whom the Burnap nonethe Congress had appropriated money for the position and then authorized the employ such number of persons for such employments, and at such rates of compensation, as may be appropriated for by Congress Id. at 517 18 (internal quotation marks omitted). The witness argues that both Morrison and Intercollegiate Concord Mem. at 10. This is incorrect; neither Morrison nor Intercollegiate imposed such a rule. While the statutes at issue in those cases expressly authorized the appointment of inferior officers, see 28 U.S.C. § 593(b)(1) (expired) court shall appoint an appoint 3 full-time Copyright Royalty Judges ), nothing in either Morrison or Intercollegiate suggested that such specificity was relevant to an appointment s lawfulness. To the contrary, Edmond held that 78 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 79 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 93 of 109 appointment, appoint them . . . appears to give the Secretary power to 520 U.S. at 656. Finally, the witness asserts the law is settled that the Attorney General cannot Concord Mem. at 11 (internal quotation marks omitted). The authorities on which the witness relies to support this claim say no such thing. United States v. California inquired into whether -existing statutes which grant the Attorney General broad powers to institute and maintain court proceedings in order to safeguard national 332 U.S. 19, 27 (1947). United States v. Hercules, Inc. authority of the Attorney General to control litigation is not diminished without a clear and 796, 798 (8th Cir. 1992). United States v. International Union of Operating Engineers, Local 701 applied a presumption against a congressional intention to limit the power of the Attorney General to prosecute offenses under 638 F.2d 1161, 1162 (9th Cir. 1979). These decisions are inapposite, es not deprive the Attorney General of broad power to define the scope of the and to direct and supervise the Special see supra Part III.B.1.a.46 46 rity in 28 U.S.C. §§ 516 and 519 has been narrowly construed to permit id. at 56, also is inapposite. 79 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 80 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 94 of 109 In sum, the w clear statement rule applies to the vesting of power to appoint inferior officers in Heads of Departments is unpersuasive. Even if such a rule applied, moreover, which authorizes t and an attorney as special under authority of the Department of assistant to the Attorney General or id. § 515(b), plainly satisfy this test. 4. nsel Statutes for Specific Purposes Casts The witness posits expressly confer authority to appoint special or ind show that the Attorney General lacks freestanding authority to appoint special counsel, as statutes had Congress believed the Attorney General already had such authority. Concord Mem. at 19. -authorization statutes Id. at 21. As discussed in more detail below, however, two of the three statutes the witness identifies were enacted specifically to insulate politicallyrity otherwise to appoint special counsel. The sole statute the witness identifies that specifically empowered the Attorney General himself to appoint special counsel does not by itself cast doubt on the Attorney t special counsel, but properly is viewed in context as a redundancy meant to allow the Attorney General to meet recently-expanded litigation responsibilities. 80 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 81 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 95 of 109 In reaction to the Teapot Dome scandal, Congress passed a Joint Resolution authorizing and counsel who shall have charge and control of the prosecution [of Teapot Dome crimes], anything in the statutes touching the powers of the Attorney General of the Department of Justice to the See ch. 16, 43 Stat. 5, 6. Congress authorized the President to appoint the Teapot Dome Special Counsel not because the Attorney General lacked authority to appoint special counsel himself, but because In re Olson, 818 F.2d 34, 39 40 & n.7 (D.C. Cir. 1987); see also Donald C. Smaltz, The Independent Counsel: A View from Inside, 86 GEO. L.J. 2307, 2315 16 -Attorney General Harry Daugherty . . . . This was the first and only time that the appointment of a special prosecutor was to be with the advice and consent of the Senate. Previously, all special prosecutors were appointed either directly by the President or at the direction of the President by statutory authority. Olson, 818 F.2d at 42. grant of Teapot Dome wrongdoers, . . . to the contrary notwithstanding, Teapot Dome Res., understanding that the Attorney General otherwise had authority to appoint special counsel himself. The EIGA, which authorized and directed a special division of the D.C. Circuit to EIGA § 81 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 82 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 96 of 109 601(a); see also 28 U.S.C. § 593(b)(1) (expired) (replacing the Special Prosecutor with the Independent Counsel), tells a similar story. Enacted in response to the Watergate crisis, the EIGA reflected Congr General to function impartially with full public confidence in investigating criminal wrongdoing of high- Olson, 818 F.2d at 42. The firing of Special Prosecutor Archibald Cox, along with other instances of Executive Branch necessary in misconduct, the future, such counsel would have to enjoy some measure of independence from the Executive Id.; see also In re Sealed Case, 838 F.2d 476, 504 (D.C. Cir. 1988), Morrison IGA thus did not reflect doubt as to authority to appoint special counsel, but rather recognized concerns over his ability to investigate impartially the administration in which he served. Finally, the witness cites the Payne-Aldrich Tariff Act of 1909, which authorized the Attorney 1909, Pub. L. No. 61-5, ch. 6, § 28, 36 Stat. 11, 108. Unlike the Teapot Dome Resolution and the EIGA, the Tariff Act neither reflected a profound crisis of confidence in the institutions of American democracy nor vested power to appoint special counsel outside the Attorney General. The Act authorized the Attorney General to appoint to appoint special counsel under Section 515(b) and Section 533(1). The Act created the U.S. Court of Customs Appeals and authorized the appointments of an Assistant Attorney General, a Deputy Assistant Attorney General, and four other attorneys to represent the government in the 82 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 83 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 97 of 109 classification and litigation work that would ensue. Id. at 105 08. That the Act expressly authorized the Attorney General to appoint special counsel, when Congress could simply have special counsel predecessor, is unsurprising given the volume of litigation the new court was expected to generate. See Conn. N between two laws, a court must give effect to both (internal citation omitted)). Indeed, wed these as separate categories. See, e.g., Act of June 25, 1910, Pub. L. No. 61-266, ch. 384, 36 Stat. 703, 747, 750; Act of July 1, 1918, Pub. L. No. 65-181, ch. 113, 40 Stat. 634, 681, 683; Act of June 3, 1948, Pub. L. 80-596, ch. 400, 62 Stat. 305, 316 17. * * * For the foregoing reasons, the Attorney General had statutory authority to appoint the Special Counsel. D. The Special Counsel Was Validly Appointed By a Head of Department Finally, the witness argues that the Special Counsel was not appointed by a Head of Department, as the Excepting Clause requires, 47 47 The witness raises this argument for the first time in his reply brief. See well, 121 F. Supp. 3d 41, 51 (D.D.C. 2015) (quoting Lewis v. District of Columbia, 791 F.Supp.2d 136, 139 n.4 (D.D.C. 2011)). The Special Counsel, however, has voiced no objection to entertaining this argument, and the Court exercises its discretion to do so. 83 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 84 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 98 of 109 The witness contends that the DAG Acting Attorney General, and thus that the DAG authority to appoint a Special Counsel as an inferior officer, rendering ultra vires Id. is mistaken for two reasons: (1) 28 U.S.C. § 508(a) authorizes the DAG to serve as Acting Attorney General when the Attorney General is recused from a matter, and (2) the Attorney General constitutionally may delegate to the DAG the exercise of his appointment power. As such, the Special Counsel was appointed by an appropriate officer. 1. 28 U.S.C. § 508(a) Allows the DAG to Serve as Acting Attorney General Where the Attorney General is Recused Section 508(a) of title 28, United States Code provides: In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may ex The witness argues that Section 508(a) does not authorize the DAG to serve as Acting Attorney General but only to exercise the id not trigger Section 508(a) Neither argument persuades. in any event because recusal is not The witness asserts that does not 14. It is well-settled, however, that statutory language authorizing one to exercise the duties of an office suffices to make that person an acting officer. The Second Congress, for example, enacted a statute empowering the President, in case of death, absence from the seat of government, or sickness of the Secretary of State, Secretary of the Treasury, or Secretary of the War department, . . . whereby they cannot perform the duties of their said respective offices, . . . to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or 84 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 85 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 99 of 109 until such absence or inability by sickness shall cease 279, 281. The Supreme Court has recognized that this language authorized the President SW Gen., Inc., 137 S. Ct. at 935. Congress also, in 1863, empowered Executive Department, or other officer in either of said Departments, whose appointment is vested in the President, at his discretion, to perform the duties of the said respective offices until a successor Act of Feb. 20, 1863, ch. 45, 12 Stat. 656, 656. Subsequently, the Vacancies Act of 1868 e head of any executive department, the first or sole assistant thereof shall, unless otherwise directed by the President of the United States, as is hereinafter provided, perform the duties of such head until a successor be appointed, or such absence or s Act of July 23, 1868, ch. 227, 15 Stat. 168, 168. The Supreme Court has described both of these statutes as authorizing the service of SW Gen., Inc., 137 S. Ct. at 935; see also 5 U.S.C. § [ing] an officer or employee to perform the 3347(a)(1)(B) (recognizing that a statute functions and duties ); English v. Trump, 279 F. Supp. 3d 307, 312 (D.D.C. 2018) (describing 12 U.S.C. § 4, which allows the Deputy Comptrollers of the Currency to . . . absence or disability, statute only two years after the Vacancies Act of 1868. See DOJ Act § 2 (providing that the Solicitor office of Attorney-General, or in his absence or disability, shall have power to exercise all the duties of that office DAG as Acting 85 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 86 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 100 of 109 Attorney General, to authorize the service of acting officers. See SW Gen., Inc., 137 S. Ct. at 935; Cf. Bond v. United States, 134 S. Ct. 2077, 2088 (2014) just as it ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW reasonably, to contain all that it fairly Context and common sense reinforce this conclusion. Section 508(a) is triggered by 28 U.S.C. § 508(a), both situations in which there effectively is no Attorney General. Under such circumstances, Section 508(a) most sensibly and naturally is construed to allow the DAG to act as Attorney General, rather than to hold the s office vacant while allowing another merely to perform the Attorney designation is carefully defined and triggered by op t , which is 14, and which applies only when an officer nominated by the President and confirmed by the Senate 48 perform the functions and duties of the office, not temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency 48 The FVRA, however, is a statutory provision expressly . . . The Special Counsel disclaims any reliance on the FVRA, see 5, due to the time see 5 U.S.C. § 3346. The Special Counsel argues that hen recusal continues by it office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of [the FVRA] the Deputy Attorney General is the first assistant to the Attorney designation, for FVRA purposes, See id. 86 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 87 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 101 of 109 designates an officer or employee to perform the functions and duties of a specified office te ; see also Hooks v. Kitsap Tenant Support Servs., Inc. provides a means for filling such a vacancy . . . . neither the FVRA nor the [other statute] is the exclusive means of appointing an Acting [officer]. English agency-specific statutes . . . . Where such a statutory provision exists and . . . the FVRA applies, that can only mean t functio is a nonexclusive m . Section 5 U.S.C. § 3347(a)(1)(B), until the vacancy, absence, or disability ends, 28 U.S.C. § 508(a). See S. Rep. No. 105250, at 15 16 (1998). The FVRA thus does not provide the exclusive means for designating an Acting Attorney General. The witness persists, contending that even if Section 508(a) allows the DAG to serve as Acting Attorney General, the Attorney General recusal does not constitute Section 15. As support, the witness states that the Attorney General want to serve as Attorney General with respect to matters from which he had recused himself because he felt conflicted to be in charge of the Ru Id. at 15. meaning . Id. To the contrary, dictionaries in use during the period in which 87 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 88 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 102 of 109 1 BENJAMIN VAUGHN ABBOTT, DICTIONARY OF TERMS AND PHRASES USED IN AMERICAN OR ENGLISH JURISPRUDENCE (1879), a definition that can encompass an a legal impediment to the performance of his functions, such as 28 C.F.R. § 45.2.49 Dictionary of Terms and Phrases disability, in a statute providing what shall be done in the event of death or disability of a public Id. The limited case law in Section 508(a) provides little additional clarity. United States v. Libby s recusal from participation in the investigation of the possible unauthorized disclosure of classified information, the Deputy Attorney General, pursuant to 28 U.S.C. § 508(a), was vested with all the powe 429 F. Supp. 2d 27, 31 (D.D.C. 2006). Whether Section 508(a) covers situations of recusal was not thoroughly litigated, however; the Court appears to have assumed rather than concluded that it does. In contrast, Moog v. United States, which the witness relies upon, see 16 [Section 508(a)] contemplates a complete inability of the Attorney General to perform his duties, such that the Deputy Attorney General must No. MISC. CIV-90-215E, 1991 WL 46518, at *2 (W.D.N.Y. Apr. 1, 1991). 49 Other dictionaries of the era offered broadly similar definitions. See, e.g., J. KENDRICK KINNEY, A LAW DICTIONARY AND GLOSSARY (1893) HENRY CAMPBELL BLACK, A DICTIONARY OF LAW acts with proper legal effect, or to enjoy cer JOHN BOUVIER, A LAW DICTIONARY J.J.S. WHARTON, LAW LEXICON, OR DICTIONARY OF JURISPRUDENCE WHARTON, supra; accord ABBOTT, supra; 1 STEWART RAPALJE & ROBERT L. LAWRENCE, A DICTIONARY OF AMERICAN AND ENGLISH LAW (1883) (dividing disabilities BLACK, supra [s] ABBOTT, supra; accord BLACK, supra (same). All of the above dictionaries have been touted as among the most useful and authoritative to understand contemporaneous legal and popular usage for the period 1851 1900. See SCALIA & GARNER, supra, at 423, 425 26. 88 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 89 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 103 of 109 Moog Attorney General would require his deputy to assume all the duties of office, clearly a nonsensical result. Id. Properly construed, however, Section 508(a) does not require the DAG to assume all , as the Moog Court suggested, when the Attorney General is recused only from particular matters. Section 508(a) provides that in the may exercise all the The that the DAG need not of interest exists. More illustrative and Rule 25(a) of the judge before whom the trial began cannot proceed because of death, sickness, or other FED. R. CRIM. P. 25(a)(1). At least four federal circuit courts have construed the See In re United States, 614 F.3d 661, 662 (7th Cir. 2010) Rule 25(a) includes disability by (internal quotation marks omitted)); United States v. Hall, 171 F.3d 1133, United States v. Sartori, 730 F.2d 973, 976 (4th Cir. 1984) (same); Bennett v. United States, 285 F.2d 567, 572 (5th Cir. 1960) (concluding that a trial judge properly had recused as using his name in order to obtain affidavits from certain witnesses in order to support his motion for a The Supreme Court of Michigan has taken a similar approach. See People v. Hicks, 89 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 90 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 104 of 109 midtrial recusal and refusal to further . United States v. Jaramillo, 745 F.2d 1245, 1249 (9th Cir. 1984), is not to the contrary. 50 A judge presiding over a criminal trial was himself indicted by a grand jury and thereafter would be inappropriate for anybody to preside in a trial Id. at 1246. The defendant moved to bar retrial on double jeopardy grounds, arguing that no manifest necessity to declare a mistrial had existed because another judge could have completed the trial under Rule 25(a). Id. at 1247, 1249. Jaramillo recognized condition see id. here, as here, the ique problems he faced as a judge indicted on criminal Id. Notably, Jaramillo did not conclude that Rule 25(a) was unavailable under the circumstances. 2. 28 U.S.C. § 510 Allows the Attorney General to Delegate to the DAG Authority to Appoint the Special Counsel In the alternative, even if the DAG were not Acting Attorney General for this matter, he still would have had authority to appoint the Special Counsel under the Attorney General recusal subject-matter. See Recusal Statement. Section 510 allows the Attorney General to s appropriate authorizing the performance by any other officer . . . of the Department of Justice of any function of the Attorney General. 28 U.S.C. § 510. Appointing special counsel is a 50 id., under Section The parties do not rely on this decision. 90 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 91 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 105 of 109 515(b) and Section 533(1). The DAG thus had authority to appoint the Special Counsel even if he was not formally the Acting Attorney General under Section 508(a). The witness does not disp can encompass a delegation of authority to appoint the Special Counsel, but asserts that the DAG U.S. CONST. art. II, § 2, cl. 2, cannot constitutionally exercise the power to appoint 14 15. This argument conflates the vesting of a power with inferior officers, the exercise of that power. Article II , which Power shall be vested in a President U.S. CONST. art. II, § 1, cl. 1, illustrates this point. That Clause some of the executive power, Morrison, 487 U.S. at 705 (Scalia, J., dissenting), yet few would but all argue that only the President can exercise the executive power. To the contrary, that others may is well-established.51 Likewise, the fact exercise the executive power that the power to appoint inferior officers is vested in the Attorney General does not prevent the DAG from exercising that Lucia is not to the contrary. Lucia at their appointments were invalid because they were selected by SEC staff rather than by the SEC itself. 138 S. Ct. at 51 See U.S. CONST. art. II, § 2, cl. 2 (providing for the appointment of executive officers); id. art. II, § 3 be faithfully executed Printz v. United States through officer fulfilling th[e] [Take Care] obligation In re Neagle, 135 U.S. 1, 63 accord Myers, 272 U.S. at 133 (same); see also PCAOB, 561 U.S. at 483 t the supreme Magistrate in discharging the duties United States v. Farden Secretary, the head of the Treasury Department, is presumed to be the act of the Preside Wilcox v. Jackson, 38 Parker v. United States Secretary of War, as the legitimate organ of the President, under a general authority from him, may exercise [the 91 Case 1:18-gj-00034-BAH Document 32-3 Filed 08/08/18 Page 92 of 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 106 of 109 2050 51, 2055. Lucia did not indicate, however, that the same result would have been reached had the ALJs been appointed pursuant to an express grant of authority by the SEC to staff to appoint ALJs, nor that the SEC could not do so. delegation of power to the DAG to appoint the Special Counsel would not violate Article II even if the DAG were not the Acting Attorney General. IV. CONCLUSION Consequently, the witness is ordered, pursuant to the grand jury subpoenas served by the Special Counsel, to appear before the grand jury to provide testimony at the earliest date available to the grand jury, and to complete production of the subpoenaed records promptly. An appropriate Order accompanies this Memorandum Opinion. Date: July 31, 2018 __________________________ BERYL A. HOWELL Chief Judge 92 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 107 of 109 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 108 of 109 APPENDIX Case 1:18-gj-00034-BAH Document 22 Filed 07/31/18 Page 1 of 1 USCA Case #18-3052 Document #1750088 Filed: 09/12/2018 Page 109 of 109 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA In re GRAND JURY INVESTIGATION . Grand Jury Action No. 18-34 (BAH) Chief Judge Beryl A. Howell FILED UNDER SEAL ORDER Upon consideration of the witness, Andrew Miller’s, Second Motion to Quash Subpoena, ECF No. 10, the related legal memoranda in support and opposition to this motion, the exhibits attached thereto, the arguments presented at the hearing held on July 18, 2018, and the entire record herein, for the reasons set out in the accompanying Memorandum Opinion, it is hereby ORDERED that the witness’s Second Motion to Quash is DENIED; and it is further ORDERED that Andrew Miller is directed, pursuant to the grand jury subpoenas served by the Special Counsel, to appear before the grand jury to provide testimony at the earliest date available to the grand jury, and to complete production of the subpoenaed records promptly. SO ORDERED. Date: July 31, 2018 __________________________ BERYL A. HOWELL Chief Judge 1