USCA Case #18-3052 Document #1760944 Filed: 11/19/2018 Page 1 of 3 PRIVACY COMPLIANCE CONSULTING 189 Chemung Street Coming, N.Y. 14830 607-301-0967 mbsibleyprivacycomplianceconsulting.com ) Montgomery Blair Sibley Manager November 15, 2018 g - - 1. :C• Clerk of Court United States Court Appeals 333 Constitution Avenue, N.W. Ste 5423 Washington DC 2000 1-2866 Re: In re: Grand Juiy Investigation Court of Appeals Docket #: 18-3052 Greetings, Pursuant to FRAP Rules 2 and 28(j), D.C. Circuit Rule 28(0, and the November 9, 2018, Order of this Court, Amicus Curiae Sibley prays for permission to submit this Letter in lieu of a formal brief given the constraints of time imposed by the late notice to him of the aforementioned Order and in response to that Order states: The resignation of Attorney General Sessions on November 7, 201$, terminated the authority of “Acting” Attorney General Rosenstein and consequently terminated Mr. Mueller’s putative authority to act as “Special Counsel”. Let me explain. 1. Congress, NQI the Constitution, Created the Office of Attorney General Congress established by Law the Department of Justice (“DOJ”) at 28 U.S.C. §501 and the Office of Attorney General (“AG”) by Law at 28 U.S.C. §503 with the AG being designated provide a term of office for the AG. Likewise, as the Head of the DOJ. Section 503 does Congress established by Law the office of Deputy Attorney General (“DAG”) at 28 U.S.C. §504. provide a term of office for the DAG. Section 504 does 2. The President Had Authority to Appoint an Acting Attorney General Article II, Section 2, Clause 3, states: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” On November 7, 2018, the Senate was in recess’. Accordingly, the appointment of Matthew Whitaker, as Acting Attorney General satisifed the requirements of Article II, Section 2, Clause 3. Moreover, Congress has expressly provided for Retreived from: https://www.senate.gov/legislative/resources/pdf/2018_calendar.pdf USCA Case #18-3052 Document #1760944 Filed: 11/19/2018 Page 2 of 3 Clerk of Court United States Court Appeals November 15, 2018 Page 2 such an appointment at 5 U.S.C. §3345(a)(3)(A) “Acting officer”. Accordingly, the appointment of Mr. Whitaker is on firm Constitutional and statutory grounds.2 3. Vacancies in the Office of Attorney General A key “constitutional means” vested in the President perhaps the key means was “the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong., at 463. And while a government of “opposite and rival interests” may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Free Enter. Fund v. Pub. Co. Accounting Oversight 3d., 561 U.S. 477, 501 (2010). -- -- Yet the unresolved question remains: What is the term of office for an “Acting” Attorney General? Clearly, when the Law “is silent as to their term of office, [municipal officers] can presumably be appointed for any term exceeding that of the officer appointing them.” De Castro v. Board of Comm., 322 U.S. 451, 462 (1944). Notably with the exception of Article Ill Federal Judges, “no civil officer has held office by a life tenure since the foundation of the Government.” Shurtleffv. U.S., 189 U.S. 311, 316(1903). Here, Mr. Rosenstein’s “term of office” as the putative “Acting” Attorney General ended on Novemember 7, 2018, with the proper appointent of Mr. Whitaker as the “Acting Attonrey General”. Accordingly, likewise Mr. Mueller’s putative authority ended at the same time.3 Any conficit between 5 U.S.C. §3345(a)(3)(A)(enacted Oct. 21, 1998, at P.L. 105-277) and 28 U.S.C. §508 (enacted Sept. 6, 1966 by P.L. 89-554) must be resolved in favor of the former given the “repeal by implication” rule of statutory construction. “Only a clear repugnancy between the old law and the new results in the former giving way and then only pro tanto to the extent of the repugnancy.” Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-457 (1945). Here that “repugnancy” is the mandate of §502 that: “In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office” against §3345(a)(3)(A) which allows the appointment of Mr. Whitaker. 2 Query: Is Mr. Mueller committing a federeal felony? When an indiviudal seeks to exercise the attributes of an Officer of the United States, and even go so far as to attach the Title of such officer to their name, i.e., “Special Counsel”, they are committing a federal crime under 12 U.S.C. §912 (impersonating an officer of the United States), and if such impersonation occurs while representing the U.S. government in Federal Court, a fraud upon that Court has been committed. USCA Case #18-3052 Document #1760944 Filed: 11/19/2018 Page 3 of 3 Clerk of Court United States Court Appeals November 15, 2018 Page 2 Respectfully submitted, * cc: James Christopher Martin, Esquire, Attorney Via Email: jcmartinreedsmith.com Reed Smith LLP 225 Fifih Avenue, Suite 1200 Pittsburgh, PA 15222 Paul Douglas Kamenar, Attorney Via Email: paul.kamenargmai1.com Law Office of Paul Kamener 1629 K Street, NW Washington, DC 20006 Michael Richard Dreeben, Attorney Via Email: mrdusdoj.gov U.S. Department of Justice (DOJ) Office of the Solicitor General 950 Pennsylvania Avenue, NW Washington, DC 20530 Adam C. Jed Via Email: adam.c.jedusdoj.gov U.S. Department of Justice (DOJ) Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530 Jeannie S. Rhee Via Email: jsrusdoj.gov U.S. Department of Justice (DOJ) Special Counsel’s Office 950 Pennsylvania, Avenue, NW Washington, DC 20530