Is Robert Mueller an 'Officer of the United States' or an 'Employee of the United States'?

Abstract

Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Professor Steven Calabresi contends that Mueller is in fact a principal officer, who must be nominated by the President, and confirmed by the Senate. George Conway, writing for Lawfare, counters that Mueller is an inferior officer, who can be appointed by the Assistant Attorney General -- the relevant department head -- without Senate confirmation. They may both be wrong.

The Supreme Court’s recent decision in Lucia v. SEC explains that if a federal position is only “temporary,” then such a position is likely not an “office of the United States.” Rather, to frame the issue as the Court did in Buckley v. Valeo, the position is a mere “employee of the United States.” This understanding of the distinction between officer and employee relies on a line of cases stretching back to Reconstruction. Without question, Mueller’s appointment is “temporary.” Therefore, he may not be an “officer of the United States” under the rule in Lucia. More pressingly, Morrison v. Olson found that the independent counsel was an inferior “officer of the United States,” in part, because it was “temporary.” Lucia did not even cite Morrison, let alone overrule it. Yet, language in Justice Kagan’s recent majority opinion in Lucia casts doubt on the continuing validity of Morrison’s holding. If Lucia is correct on this point (and we think it is), and if Morrison is now incorrect on this point (and we think it is), then Special Counsel Mueller is merely an “employee of the United States.” This post addresses four important questions that stem from this somewhat unexpected development in the law of office and officer.