Why Robert Mueller's Appointment as Special Counsel Was Unlawful

Steven G. Calabresi* & Gary Lawson**

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct what we think is the first thorough examination of the statutes structuring the DOJ to show that the statutory provisions relied upon by the DOJ and lower courts for the appointment of special counsels over the past two decades do not—and even obviously do not—authorize the creation and appointment of special counsels at the level of United States Attorneys. They authorize the creation and appointment of special counsels to “assist” United States Attorneys, and they allow existing Senate-confirmed United States Attorneys to serve also as special counsels, but they do not remotely authorize the creation of the kind of special counsels represented by Robert Mueller who replace rather than assist United States Attorneys. United States v. Nixon, 418 U.S. 683 (1974), does not hold to the contrary, because no question was raised in that case about the validity of the independent counsel’s appointment.

Second, even if one chooses to overlook the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a special counsel. Under the Appointments Clause, inferior officers can be appointed by department heads only if Congress so directs by statute—and so directs specifically enough to overcome a clear-statement presumption in favor of presidential appointment and senatorial confirmation. No such statute exists for the special counsel.

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© 2019 Steven G. Calabresi & Gary Lawson. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Clayton J. & Henry R. Barber Professor, Northwestern Pritzker School of Law; Visiting Professor of Law, Fall 2013–18, Yale Law School; Co-Founder and Chairman of the Board of Directors of the Federalist Society. The views expressed herein are solely my own and not those of the Northwestern Pritzker School of Law, Yale Law School, or the Federalist Society.

**Philip S. Beck Professor of Law, Boston University School of Law. We are grateful to Josh Blackman, Paul Kamenar, and Seth Barrett Tillman for helpful comments, though they bear no responsibility for our analysis or conclusions.