In re Grand Jury Investigation, Grand Jury Action No. 18-34 (BAH)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 315 F.Supp.3d 602
• Parties: IN RE GRAND JURY INVESTIGATION
• Decision Date: 31 July 2018
• Docket Number: Grand Jury Action No. 18-34 (BAH)

315 F.Supp.3d 602

IN RE GRAND JURY INVESTIGATION

Grand Jury Action No. 18-34 (BAH)

United States District Court, District of Columbia.

Signed July 31, 2018

315 F.Supp.3d 611

REDACTED

BERYL A. HOWELL, Chief Judge

Table of Contents

I. BACKGROUND...612

A. Historical Background...612

B. Statutory Background...617

C. The Special Counsel Regulations...618

D. The Special Counsel's Appointment...620

E. The Subpoenas at Issue...622

II. LEGAL STANDARD...624

III. DISCUSSION...624

A. The Witness's Second Motion to Quash is Timely...625

B. The Special Counsel is an Inferior Officer...626

1. The Attorney General's Authority to Direct and Supervise a Special Counsel...627

a. The Attorney General Has Plenary Statutory Power of Direction and Supervision...629

b. The Attorney General Retains Broad Authority Under The Regulations to Direct and Supervise a Special Counsel...631

2. The Other Morrison Factors All Weigh Toward Inferior Officer Status...640

a. Limited Duties...640

b. Limited Jurisdiction...643

c. Limited Tenure...643

3. Inferior Officer Status Does Not Turn on the Significance of an Officer's Duties and Functions...644

C. Congress By Law Vested the Special Counsel's Appointment in the Attorney General...651

1. 28 U.S.C. § 533(1)...652

2. 28 U.S.C. § 515(b)...654

3. No Clear Statement Rule Regarding Inferior Officers' Appointment Exists...658

4. Congress's Enactment of Special Counsel Statutes for Specific Purposes Casts No Doubt on the Attorney General's Authority to Appoint the Special Counsel...660

D. The Special Counsel Was Validly Appointed By a Head of Department...662

1. 28 U.S.C. § 508(a) Allows the DAG to Serve as Acting Attorney General Where the Attorney General is Recused...662

2. 28 U.S.C. § 510 Allows the Attorney General to Delegate to the DAG Authority to Appoint the Special Counsel...666

IV. CONCLUSION...667

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 making of a bad appointment

315 F.Supp.3d 612

and the rejection of a good one." Edmond v. United States , 520 U.S. 651, 660, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ; see also Lucia v. SEC , ––– U.S. ––––, 138 S.Ct. 2044, 2055, ––– L.Ed.2d –––– (2018) (Thomas, J., concurring) ("[T]he Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones."). The exercise of 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 stated, "[t]he prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous." Robert H. Jackson, The Federal Prosecutor, Address at Conference of United States Attorneys (Apr. 1, 1940). Such power, left unchecked, is susceptible to abuse. "Under our system of government, the primary check against prosecutorial abuse is a political one." Morrison v. Olson , 487 U.S. 654, 728, 108 S.Ct. 2597, 101 L.Ed.2d 569 (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.

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 the Special Counsel's appointment, as the Constitution requires; and (3) the Department of 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 scope of the Special Counsel's power falls well within the boundaries the Constitution permits, as the Special Counsel is supervised by an official who is himself accountable to the elected President. The witness's remaining arguments fare no better. Multiple statutes authorize the Special Counsel's appointment, and the official who appointed the Special Counsel had power to do so. For these reasons, explained in further detail below, the witness's motion to quash the 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 General's authority to direct and supervise the federal government's law enforcement responsibilities, and to appoint attorneys to assist him 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 Counsel's appointment, as well as the events giving rise to the instant dispute, are recounted.

A. Historical Background

The Attorney General did not always possess the centralized authority he enjoys today to direct the United States'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—

315 F.Supp.3d 613

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 ("Judiciary Act"), 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 write out "[a]ll his opinions, letters, and briefs ... in his own hand." Sewell Key, 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, later to be known as U.S. Attorney, "learned in the law to act as attorney for the United States in 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 court shall be holden." Judiciary Act § 35. The Act gave the Attorney General "no supervisory control over" the district attorneys, who "functioned independently" and could be directed only by the President. United States v. Hawthorne , 449 F.Supp. 1048, 1051 (S.D. Cal. 1978), aff'd , 626 F.2d 87 (9th Cir. 1980). The Act thus "created a system in which the Attorney General was specifically authorized to represent the United States only in judicial proceedings which took place in the Supreme Court," the district attorneys having exclusive "[p]ower to initiate federal criminal prosecutions, including the right to appear before a grand jury." Id. Indeed, "[s]ince the Attorney General was required to appear only in the Supreme Court, there was doubt about his ability to appear in other courts" at all. In re Persico , 522 F.2d 41, 53 (2d Cir. 1975).¹ The result was that "prior to the Civil War, federal prosecutorial efforts were almost completely decentralized, with authority vested in the hands of local United States Attorneys." Id.²

In 1861, prompted by "[t]he crisis of the Civil War," id. , Congress began to concentrate federal litigation authority in the Attorney General, giving him "general superintendence and direction of the attorneys ... of all the districts in the United States and the Territories as to the manner of discharging their respective duties." An Act Concerning the Attorney-General and

315 F.Supp.3d 614

the Attorneys and Marshals of the Several Districts ("DA Act"), ch. 37, 12 Stat. 285, 285...