Thread by @steve_vladeck

1. Following up on last week's @WSJ op-ed, Prof. Steve Calabresi has now posted to @SSRN a nine-page "Opinion on the Constitutionality of Robert Mueller's Appointment":

papers.ssrn.com/sol3/papers.cf…

His bottom line: It's unconstitutional.

This #thread explains why he's just wrong:

2. The key to understanding Calabresi's argument is to understand that it is actually two _different_ arguments that need to be addressed separately:

(i) that Mueller's _appointment_ violates the Appointments Clause; and
(
ii) that Mueller's _actions_ violate the Clause.

3. The first of these arguments is a claim that, based on the terms of the office, the Special Counsel is a "principal" officer under the Appointments Clause, and must therefore be nominated by the President, confirmed by the Senate, and removable at will by the President.

4. This is a _different_ argument than the one folks have offered against the bill to protect Mueller, which turns on the claim that Congress can't require "good cause" for the removal of "inferior" Executive Branch officers.

Calabresi is claiming Mueller isn't inferior at all.

5. Eric Posner and I have already explained at some length why this is just wrong—and why, under the same #SCOTUS precedents Calabresi relies on, the Special Counsel is _clearly_ an inferior officer:

justsecurity.org/wp-content/upl…

Calabresi nowhere addresses or critiques our analysis.

6. Suffice it to say that I have a hard time seeing how, if the Independent Counsel was an "inferior officer" (as #SCOTUS held), the Special Counsel—who has the same or less authority in every material respect—could somehow be a "principal officer."

So much for the first claim.

7. Calabresi's second claim—that Mueller is _acting_ like a principal officer—is messier, because it depends on facts to which we (including Calabresi) are not fully privy.

Even on the current record, though, there are two critical things to understand about it:

8. First, Calabresi's argument has nothing whatsoever to do with the Appointments Clause.

An inferior officer who wrongly acts like a principal officer is not violating the Constitution; he's violating the terms of his office, whether delegated by statute or by regulation.

9. This follows from every single #SCOTUS Appointments Clause decision, which turns not on the actual actions of the officers in question in ascertaining their status, but on the rules or statutes setting forth their proper legal authority. For Mueller, that's 28 C.F.R. Part 600.

10. So Calabresi's true claim here is not the sensational one that Mueller is violating the Appointments Clause; it's the far more modest claim that Mueller is acting in excess of the authority that has been delegated to him, through his appointment, by the relevant regulations.

11. Second, even with regard to that narrower, far more modest claim, much of it has already been expressly rejected by the one federal judge to consider it—Judge Jackson in her 37-page opinion last Tuesday denying Paul Manafort's motion to dismiss:

politico.com/f/?id=00000163…

12. Don't get me wrong: Judge Jackson is one district judge, not the Supreme Court. Although I find her analysis deeply persuasive, the matter certainly isn't settled.

But (1) that's the actual legal question at issue here; and (2) Calabresi doesn't address her analysis at all.

13. So despite Calabresi's op-ed and "opinion," what this issue really reduces to is a technical debate over whether Mueller is in fact acting consistently within the limits of his delegated regulatory authority.

14. That's an important Q., and folks may disagree with Judge Jackson's answer.

But as this #thread has hopefully demonstrated, the hysteria and hyperbole surrounding Mueller and the Appointments Clause is way, way off—and is somewhere between incoherent and disingenuous.

/end