In re Grand Jury Investigation

Decision Date31 July 2018
Docket NumberGrand Jury Action No. 18-34 (BAH)
CourtU.S. District Court — District of Columbia


BERYL A. HOWELL, Chief Judge

Table of Contents

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 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.


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—

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 the Attorneys and Marshals of the Several Districts ("DA Act"), ch. 37, 12 Stat. 285, 285 (1861). The Act also required the district attorneys "to report to the Attorney-General an account of their official proceedings, and the state and condition of their respective offices." Id. Finally, the Act authorized the Attorney General "to employ and retain (in the name of the United States) such attorneys and counsellors-at-law as he may think necessary to assist the district-attorneys in the discharge of their duties." Id. § 2.3

With the DA Act, the Attorney General could for the first time both direct the district attorneys' work and hire attorneys. The Attorney General's hiring authority, however, was limited to hiring attorneys to "assist the district attorneys." 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...

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9 cases
  • United States v. Stone
    • United States
    • U.S. District Court — District of Columbia
    • August 1, 2019
    ...Act, which was originally set to sunset after five years, created the position of "Special Prosecutor." In re Grand Jury Investigation , 315 F. Supp. 3d 602, 618 n.4 (D.D.C. 2018), citing Ethics in Government Act of 1978, 28 U.S.C. § 601(a) (expired), aff'd , 916 F.3d 1047 (D.C. Cir. 2019),......
  • In re Grand Jury Investigation
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 26, 2019 the Special Counsel. The district court denied the motion to quash and held Miller in civil contempt. In re Grand Jury Investigation , 315 F.Supp.3d 602, 667 (D.D.C. 2018).II. On appeal, Miller challenges the authority of Special Counsel Mueller on the grounds that his appointment is unl......
  • In re Judiciary
    • United States
    • U.S. District Court — District of Columbia
    • October 25, 2019
    ...making the Deputy Attorney General the "Acting Attorney General, by operation of law" as to such matters, In re Grand Jury Investigation, 315 F. Supp. 3d 602, 621 (D.D.C. 2018), aff'd, 916 F.3d 1047 (D.C. Cir. 2019).3 Redactions in the Mueller Report were not applied by the Special Counsel'......
  • Wash. Post v. McManus
    • United States
    • U.S. District Court — District of Maryland
    • January 3, 2019
    ...Committee on Intelligence that the FBI was investigating Russian efforts to interfere in the 2016 election. In re Grand Jury Investigation , 315 F.Supp.3d 602, 621 (D.D.C. 2018). Two months later, the Acting Attorney General appointed Robert S. Mueller III to serve as Special Counsel for th......
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1 books & journal articles
    • United States
    • Notre Dame Law Review Vol. 95 No. 1, November 2019
    • November 1, 2019
    ...(10.) Some of those subpoenas have been the subject of motions to quash. See In re Grand Jury Investigation, 315 F. Supp. 3d 602 (D.D.C. 2018), aff'd, 916 F.3d 1047 (D.C. Cir. 2019); United States v. Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d 598 (D.D.C. (11.) Jesus Rodriguez &......

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