A federal appeals court that is widely viewed as the second-most powerful court in the country handed down an opinion on Tuesday holding that Robert Mueller’s appointment as special counsel is constitutional. This isn’t exactly a surprising decision.
Many of the issues raised in In re Grand Jury Investigation rehash questions that were settled in previous cases involving special or independent counsels. And the United States Court of Appeals for the District of Columbia Circuit’s decision was joined by Judge Karen LeCraft Henderson — an arch-conservative judge who fairly often dissented from Judge Brett Kavanaugh’s right when Kavanaugh served on her court.
Yet, while the arguments in Grand Jury are not especially controversial, they’ve been treated as such by one of the most powerful organizations in the country. Steven Calabresi, a law professor and chairman of the Federalist Society’s board of directors, published a 21-page memo arguing that Mueller’s appointment is unconstitutional. The Federalist Society itself touted this argument in a teleconference that many journalists — including this reporter — were invited to attend.
Calabresi also authored a later-withdrawn memo arguing that Congress should double or even triple the number of federal appeals court judges after President Trump’s election with the goal of “undoing the judicial legacy of President Barack Obama.”
As a presidential candidate, Trump promised that, if he were elected, “we’re going to have great judges, conservative, all picked by the Federalist Society.” Since Trump took office, the Federalist Society and its executives played a major role in selecting Trump judges — including Trump’s nominees to the Supreme Court.
So its significant that one of the Federalist Society’s top leaders — the chairman of its board — is so radicalized that he embraces the kind of arguments that are swiftly rejected even by hardline conservative judges like Judge Henderson.
Calabresi’s argument against Mueller’s appointment arises out of the Constitution’s Appointment’s Clause, which governs the appointment of two different kinds of federal officials. “Principal officers,” must be nominated by the president and confirmed by the Senate, while “inferior officers” may be appointed by “the President alone,” “the Courts of Law,” or “the Heads of Departments.”
According to Calabresi, Mueller should count as a principal officer because he “is investigating a large number of people and has already charged defendants with many different kinds of crimes” and “that’s too much power for an inferior officer to have.”
“Only a principal officer, such as a U.S. attorney, can behave the way Mr. Mueller is behaving,” Calabresi incorrectly wrote in a Wall Street Journal op-ed summarizing his argument. (U.S. Attorneys are inferior officers, and a federal statute permits the Attorney General or a federal district court to appoint these officers.)
In any event, the Grand Jury opinion disposes of Calabresi’s argument in two crisp pages.
As the Supreme Court held in Edmond v. United States, an inferior officer is an official “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Robert Mueller was appointed by Deputy Attorney General Rod Rosenstein, who was appointed by Presidential nomination with the advice and consent of the Senate. His work was overseen by Rosenstein, and now by Attorney General William Barr, who was also appointed by Presidential nomination with the advice and consent of the Senate.
Therefore, Robert Mueller’s position, much like Calabresi’s argument, is categorically inferior.
So why does this all matter? The DC Circuit rejected a meritless argument based on longstanding precedents. Calabresi is a law professor who made a terrible legal argument that garnered no traction in the federal courts. It’s fun to dunk on the guy, but he holds no public office.
But what Calabresi does wield is influence — tremendous influence over an organization that is literally reshaping the federal judiciary. The fact that a garbage legal argument was rejected by the federal courts today does not mean that it will be rejected tomorrow, so long as powerful groups like the Federalist Society are pushing judges who may embrace that ridiculous argument.