Boston University Law review. After clerking for one year with the u. S. Court of appeals for the district of columbia, he joined kirkland and ellis where he spent the next 17 years establishing his reputation as one of the countrys leading courtroom lawyers. In 1993, mr. Beck and his colleague founded one of the most highly respected firms of trial attorneys in the nation. Mr. Beck has litigated hundreds of cases over the course of his career, but he is perhaps most wellknown for his work as the lead attorney representing the george w. Bush campaign in bush versus gore, which ultimately determined the outcome of the 2000 president ial election. We are grateful to mr. Beck for funding this lecture series and establishing the philip beck establishment, currently held by my colleague gary lawson. Professor lawson is a leading scholar of constitutional law and as i learned last week, he is also a huge billy joel fan. He twice worked for antonin scalia, once on the court of appeals for the district of columbia and once at the u. S. Supreme court. Professor lawson is also a Founding Member of the Federalist Society where he serves on the board of directors. He is also on the Editorial Advisory Board for the heritage guide to the constitution, a reference guide for legal scholars. Today professor lawson will discuss his views on why Robert Muellers appointment as special counsel was unlawful. In an article of the same title authored by professor lawson and his colleague from the prisco school of law Pritzker School in aw will appear forthcoming edition of the notre dame law review. I now want to invite professor lawson to the podium. [applause] professor lawson thank you. As i said 20 years ago when i got hired here, you may be right. I may be crazy, but i just might be the lunatic youre looking for. [laughter] professor lawson i guess you will all be able to judge that over the next hour or so. On may 17, 2017, acting United States attorney general of Rod Rosenstein appointed Robert Mueller, former fbi director, but at the time a lawyer in private practice, to be special counsel for the department of justice. During the two years of operation of the office of special counsel, it in paneled a grand jury, issued thousands of subpoenas, indicted at least 33 people in three companies, secured seven guilty pleas, and obtained convictions on eight counts in a criminal trial. All of those actions had formal legal consequences, and some of those consequences continue to this day even after the Office Closed up shop on march 22, 2019. It is therefore more than academic interest, though also academic interest, that all of those legally consequential. Ctions were unlawful Robert Muellers office of special counsel had no Legal Authority to act, to be sure. This was not by any means the First Special counsel unlawfully appointed in the last two decades, but hopefully will be the last if the argument that my long time collaborator and i make proves persuasive, and that is the argument that i want to summarize for you today. Problems with the office of special counsel are constitutional, as is appropriate for a belated Constitution Day event, but some of the most noted problems involve gardenvariety, meaning im sorry to say deathly dull, statutory interpretation. Because the statutory argument involves a close reading of some interconnected and crossreferencing texts, a visual aid proves helpful. If this was a classroom, i would use a hand out, or my old standby, chalk and a blackboard, but because we are here, i have to do something i have never before done at this school powerpoint. [laughter] [ [sighs]awson this could be a train wreck, so stand by. Ets start basic the statute authorizing Robert Mueller as special counsel. The problem. Of that is, in fact, the statute authorizing Robert Muellers office as special counsel. Well, there is this thing. Im actually going to come back to that thing, the thing that that does and off in fact authorized something called special attorneys. Its just not the kind of special attorneys that im going to be talking about today. As i said, im going to get back to that mysterious statute several times before we are done. For now, that is what we are dealing with. Well, so what . Who needs a statute when youve got a pen and youve got a phone, right . Cant president and attorney general just create whatever positions in the department of justice they need . The answer is no. Creating offices is not an executive function. Its not a judicial function. ,t is a legislative function and the constitution says so. Time for a little constitutional detour. The constitution itself creates almost none of the positions in the federal government. It creates the congress, consisting of a house and senate. It creates the presidency, the vice presidency, a Supreme Court that has to have at least one member, and that is it. The constitution assumes that there are going to be all sorts of things like ambassadors, other public ministers and councils, other judges, heads of departments, but it does not create any of those positions. Instead, it leaves it to congress to create those clause, mynder this alltime favorite constitutional clause, which gives Congress Power to make all laws which shall be necessary and proper for carrying into execution all of the powers of the national government, and a statute creating offices is the quintessential law necessary and proper for carrying into execution federal powers. Constitutional convention, James Madison andsed adding the words establish all offices to this clause. Theas voted down 92 on ground that they clause was so obvious it included that power that they would look stupid if they said it. Why state the obvious . The exclusive role of congress in creating offices is reinforced by the appointments clause, which governs how certain kinds of Government Employees those known as officers of the United States more on them later have to be appointed. The President Shall nominate and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the spring court, and all other officers of the united are notose appointments herein otherwise provided for, and which shall be established by law. If they are not established by law, they do not exist. If we are talking about a position to be filled by an officer of the United States, it must be established by law, meaning statute. We need congress. So what has Congress Done with respect to the department of justice . Well, it has passed a lot of statutes creating a lot of offices. I will run through them quickly. Department structure. You have one attorney general, one Deputy Attorney general, one associate attorney general, one solicitor general who must be thened in the law by way, theres no such requirement for the attorney general, Deputy Attorney general, or associate attorney general. Just so you know. Exactly 11 assistant attorneys general. Theres actually a 12 person with that title, but that is an administrative position not filled by an officer, so it does not really count. Exactly 11 of those. Exactly one United States attorney for each judicial district of which there are currently 94. There is a general provision that does not have a number in it for assistant United States attorneys. I told you that special attorneys thing was going to come up again. Back to that one later. You have one director of the fbi, one head of the marshals service, one marshal for each a director ofict, the bureau of alcohol, tobacco, firearms, and explosives, a director of the bureau of prisons you kind of get the idea here, right . Oh, theres more. 21 United States trustees. Exactly 21 United States trustees. Congress has devoted a lot of attention to figuring out what structure of the department of justice looks like. If you put all of those positions together, they account for a tiny, tiny fraction of the more than 100,000 people who work for the United States department of justice. Thats because the vast majority of the people who work for the department of justice are not officers of the United States within the meaning of the appointments clause. They are employees. Their appointments are not controlled by the appointments clause. Congress can pick whatever mode of appointment is necessary and proper for carrying into execution government powers, and their positions do not acquire the specific statutory authorization of established by law that is necessary for officers. For those people, the 9900 50 or whatever of the rest of them, it suffices to provide, as congress has, not just for the department of justice, but for every federal agency that they may employ such numbers employees of the various classes recognized by chapter 51 of this title thats the Civil Service clause as congress may appropriate more yeartoyear. When the department of justice gets its money, assuming it is a general appropriation, they can buy paper clips, flash drives, assuming the personnel satisfy the other statutory requirements. What it cannot do is use general appropriations to hire officers of the United States unless those officers are established by law. Congress create a general authorization to the attorney general or the president to create whatever officers it wants . Well, theyve done that sometimes. They do that for the department of agriculture. Secretary may appoint such officers and employees as they want. Theyve done it for the department of education. Theyve done it for the department of transportation. They do it for Administrative Law judges, which two terms ago, the Supreme Court confirmed are officers of the United States for constitutional purposes, and i have already mentioned the provision that im going to come back to again for assistant United States attorneys and special attorneys. Its possible for congress to pass those kinds of general authorizations. I happen to think that all of those statutes i have just shown you are unconstitutional subdelegations of legislative authority, but thats another. Alk for another day for today, it doesnt really matter because there is no such statute for the department of justice. We are talking about the department of transportation, we would have a very different kind of statutory argument. There was no general authorization in statute for the attorney general to hire officers. Well, thats not entirely right. There is one special tailored provision dealing with the theau of prisons that gives attorney general the same power the secretaries of transportation and education have. Bureau of prisons have a director, and the attorney general may appoint such additional officers and employees as he deems necessary. Context, notfic elsewhere. 1974 in the ethics and Government Act, congress added one other kind of officer to the department of justice structure. That was the independent counsel. Thats the kind of thing Alexia Morrison was in morrison versus olson. Its the kind of thing can star was when he was investigating president clinton its the tarr was when ken s he was investigating president clinton. But that expired in 1999 and has not been reenacted to congress. Enter the department of justice. Just for the independent counsel ,tatute was set to expire attorney general janet reno promulgated regulations not a statute. This is unilateral executive action providing for an office of special counsel. Those regulations took effect on july 1, 1999, and assuming they are valid, which they are not, they are still in effect today. Ther these regulations, attorney general can appoint a if proceedings by the department of justice would present a conflict of or extraordinary circumstances, it would be in the public interest. Notice that the special counsel has to be a lawyer with a reputation for integrity nobody else has to be a lawyer with a reputation for integrity, including the solicitor general. Just has to be learned in the law, right . Last clause, that special counsel shall be elected from outside the United States government. In the regulations that the special counsel cannot be somebody who is already a constitutional officer of the United States. Thats the rub here. Ok, what can this person do . Well, exercise power and of thedent authority prosecutorial functions of any United States attorney. What the regulations do is create, in essence, an additional United States attorney brought in from outside the government. Remember, the statutes statesbed one united attorney for each judicial district. No more, no fewer. Where would the department of justice get the idea that it could simply create another position like this, given the statutes that congress has passed . In 1999 when the department of justice issued these regulations, it cited a whole bunch of statutes as authorities. Two years ago, when acting uporney general rosenstein one of the office memo picked three of those provisions 509, 510, 515 so it is that list we have to go through to see if there is actually any authority independent of the ones that i have, so here we go. Told you this was going to be boring. Five usc 301. The head of any executive Department Power to prescribe regulations for the government of his department, the conduct of its employees, and so forth. This is what is called a general housekeeping provision. Rather obviously, nothing in the general housekeeping provision creates offices or authorizes the creation of offices. As one District Court aptly put it describing the section, this power to keep houses is not the the as the power to build house by appointing officers. Indeed, if you took that section as a general authorization to create whatever officers offices anybody in the government wanted, the entirety of the more numerous statutory provisions scattered throughout the United States code would be superfluous. That is an absurd and constitutionally dubious construction of section 301. While the government has actually made that argument on occasion, well, the government makes humans on occasion of which it is best not to speak. 041 0 for 1. 28 says the attorney general can exercise the executive functions of anyone in the department of justice. Who thosething about subordinates are or how they get there. Number two, about 510, that allows the attorney general to delegate functions within the department of justice. Once again, it says nothing about who those people are or where they come from. Other statutes do that. Once you know who the chess pieces are, the attorney general can then move them around any way the attorney general wants. Although this provision seems to give the attorney general a categorical power to delegate functions, that is qualified by background rules about delegations. Not everything within the attorney generals power can be delegated to anybody. The attorney general, for example, cannot delegate to a random employee functions that can only be performed by constitutional officers of the United States appointed in conformance with the appointments clause. Ection so it allows them to sell gate but lees it to someone else to determine what is dell gabble. If the special Security Council an officer of the United States, that is pretty clearly the case, we still need to find Statutory Authority for that office to exist. At this point the department of justice is starting to look a lot like the miami dolphins. Not going very far, see how theyre going to do against the cowboy this is week. 5. 15. A. The attorney general or any other member of the department of justice may conduct any kind of legal proceeding which United States attorneys are authorized to conduct wlorn hes a resident in which the proceeding is brought that has to do with shuffling authority around among subordinates. Its a gee grow a geographical provision, doesnt tell you who is properly able to exercise the authority within the department of justice. It would, for example, allow thenUnited States attorney Rod Rosenstein when he was in that position to conduct investigations in the district of columbia and i it allows current u. S. Attorney john durham in connecticut to conduct investigations in the district of columbia. But it says nothing about who the personnel in the department of justice will be. Then theres 5. 15. B. Each authority specially retained under the department of justice thats the one i keep saying ill get to, its come, its coming. , there take an oath was a District Court opinion recently that in response to a challenge to a subpoena from the special counsel rely on this provision as authority to hire a personal counsel. It rather obviously doesnt do that. It refers to attorneys specially retained, right, meaning theyve already been hired by virtue of some other provision. I should note, i should have put this up on a slide. The district judge ellipsed out the tenses of the verbs in this section because theyre all in the past tense and that wouldnt fit. Now to be sure, section 515 a and b both assume there are going to be people called attorneys specially apoint by the attorney general and specially retained under the authority of the department of justice. Right . So it assumes that somewhere theres an authority to create these people called special attorneys. And indeed there is. There is an explicit provision in title 28 of the United States code authorizing the attorney general to hire special attorneys who can then be called special assistants or special attorneys, take the oath, get the salary, all the rest of that. If there is in fact an explicit provision to that effect, why doesnt the department of justice cite it . To solve that mystery in short order well solve that mystery in short order but for now lets continue on our dolphins season. Weve got a few more provisions to go through 567816, 517, 518 are so stupid as claimed authority im not even going to put them up for you. 519 doesnt actually do much better. But at least its got something there except that otherwise all these provisions say. Attorney general shall supervise all litigation which is the sust a party. Thats how you create an office, isnt it and shall direct all u. S. Attorney, assistant u. S. Attorneys and special attorneys appointed under section 543 of this title, all right. Ok, obviously doesnt create any positions or authorize the creation of any positions but now we have something to go on. Weve got a reference to section 543. What is 543 . Explicit Statutory Authority to hire special attorneys. Yet neither the 1999 regulations nor Rod Rosensteins 2017 memorandum makes any reference to 28 u. S. C. Section 543. Why not . Because it doesnt authorize the kind of special attorney they wanted to hire. Section 543 is very narrowly cabinned as one would expect from the structure of the statutes that we have already soon. The government has steadfastly refused for decades to rely on this provision because it doesnt give them what they want. Heres what section 543 says. Section 543 says the attorney general may appoint attorneys, wait for it, to assist United States attorneys. To assist United States attorneys. There are lots of contexts where that makes a lot of sense. Government will often encounter circumstances where there are private lawyers out there who can be valuable but who dont want permanent appointments. Could involve things like gangs, banking, antitrust, all sorts of things where private lawyers may have organized crime. They may have all kinds of expertise. As part of a task force or as part of a group under the supervision of a United States attorney. So as an important as a personal attorney could make a lot of sense for both sides. Its a temporary matter. A person then gobacks to their life. The problem for the government in the case of the 1999 regulations is the 1999 regulations dont contemplate special counsels assisting United States attorneys. They contemplate special counsels replacing United States attorneys. Doing things instead of United States attorneys. Not under the supervision of United States attorneys. Robert mueller was not appointed to a to assist United States attorneys or to prosecute in indian country. He was hired as a stand alone officer to perform the functions of a United States attorney. Thats what the regulations prescribe. That is precisely what the ethics in Government Act contemplated for independent counsels and statutorily authorized. But there is no statutory authorization for independent counsels anymore, it went away in 1999. Theres no Statutory Office of special counsel to which someone with Robert Muellers range of authority could be appointed. What this section does though is provide the hiring authority thats cross referenced but not created by previous sections. Section 5s15 and 519. It permits special attorneys, just not the kind the department of justice wanted to create. There is one other provision that the department of justice has never chosen to rely on but which a couple of courts have occasionally lample latched onto. Thats section 533. The tonchinge may appoint officials to detect and prosecute crimes against the United States. Aha. Or as eddie murphy said in coming to america, aha isnt that exactly what were dealing with here . Somebody to detect and prosecute crimes against the United States . Well, yes. But. Once again. The provision like section 543 is very limited. Its in the a general authorization to the attorney general to appoint anyone and everyone to anything. It contemplates and authorizes the appointment of investigative and Law Enforcement officials, officials, not officers, connected with the f. B. I. And nothing more. How do we know this . Couple of reasons. First this particular section is part of chapter 33. Told you this would get boring. Chapter 33 of title 28 of the United States code. Covers section 531 through 540c, deals with the federal bureau of investigation. The section immediately before this creates the director of the f. B. I. The section which immediately follows deals with preserving evidence in criminal cases within the f. B. I. Section 533 deals with f. B. I. Officials. By the way, notice it says officials. Doesnt say officers. It says officials. Deals with f. B. I. Officials. That is how the government has always understood this provision. Always been taken as yield back the balance of my Time Authority for the f. B. I. s operations, not random appointments of people. Secondly, ive already mentioned the use of the word officials. As opposed to officers. Whats the difference . Well the difference is officers are a constitutional thing that have to be appointed in conformance with the appointments clause and must be established by law. Officials, not so much. They are nonofficer employees who can be appointed any way Congress Wants them to be. Thats what most of the people who work for the government are. And you can see this in connection with the rest of the provision. Who else does this authorize . People to assist in the protection of the president or the attorney general tore conduct other these are all important people performing important functions. Are they policymakers . Are they the starts sorts of people who are officers of the United States . No. Theyre field officers. The f. B. I. Needs field officers. To investigate and prosecute crimes against the United States. If all you have are officers nothing will ever get done. Just like if all you have are deans and associate deans nobody teaches the classes, right . You need the people who are the flunkies like us. Right . In addition to the people who are the actual officers. They dont have to do a special have to do with special counsels. Third and perhaps most tellingly. If you try to make a cavalier reading of this provision and i shouldnt make such complete hash of title 28 that its hard to say. This is title 28 divided into the section. The attorney general section. The f. B. I. Section. The u. S. Attorney section. The shar shall section, the now defunct independent counsel batse and the bureau of section. The provision 533, thats in the middle of the f. B. I. Section. Right . The very clear, especially since youve got a separate independent counsel section, thatre not talking about appointments of officers. Even if you were, that would lead to the remarkable conclusion, because theres nothing in 533 that limbs its scope, could the attorney general use 533 to hire 12 more assistant attorneys general, nine more solicitors general, eight more Deputy Attorneys general, and 277 more u. S. Attorneys all without Senate Confirmation . Under the authority of section 533 . That is insane. Which is why the government doesnt argue it. That doesnt stop some courts from using it. But the government doesnt argue it for that reason. In sum theres no Statutory Authority to hire a special counsel to replace rather than assist a United States ttorney. I think the capper for all of this, capstone for all of this, well, let me back up a little bit. Remember that provision about the bureau of prisons . That was a specific statutory authorization for hiring officers in the context of the bureau of prisons. Right . Theres no such provision authorizing hiring of officers outside that. Now arguments along the lines that i have just jut lined have recently been advanced in court, not by me, im not a practicing lawyer. In litigation challenging the special counsels authority. Usually trying to quash subpoenas. The issue actually reached the d. C. Circuit court of appeals last year and im going to give you the entire discussion of that court about the attorney generals Statutory Authority to hire special counsel. Because binding precedent establishes that congress has by law Vested Authority in the attorney general to appoint the special counsel this court has no need to go further to identify the specific sources of this authority. As Justice Gorsuch said last year in a different different context, yes. Thats it. So what is this binding precedent that is so overwhelmingly powerful that the courts dont even need to look at the statute . Well, it turns out its two cases. One of them is United States v. Nixon from 1973 1974, the watergate tapes case. And one is a d. C. Circuit case from 1987 which involved investigation this the iran contrainvestigation of oliver north. Because i have limited time here i cant go through the 15 pages of the forthcoming law review article that painstakingly examines the briefs and oral arguments in those cases in grusm and awful detail but here is the bottom line. Those cases could not have upheld the authority of the attorney general or the president to appoint a special counsel because in neither case was that authority challenged. It just wasnt. There were all sorts of things being argued in those two cases. The authority to hire a special counsel was never one argument. Steve and i go through the briefs. We have two pages of one of the briefs we quote in full so we get the context. No possible way. For some reason, the federal courts really dont want to face this statutory question. Were actually not sure why they dont want to face it but they really dont. Nonetheless, the statutes are what they are. There simply is no authority in the department of justice to appoint the kind of special counsel that they want to appoint. Even if there was such a statute, there would be an underlying constitutional problem. The 1999 regulations contemplate appointment by the attorney general. Thats ok if someone is an inferior officer of the United States. But in the case of a special counsel, steve and i think any lawful appointment has to be by the president with the advice and consent of the senate. Wait a minute, says anyone who has had constitutional law. Didnt moreson vs. Olson, a case from 1988 set that will question when it held that Alexia Morrison who was an independent counsel appointed under the 1974 statute was an inferior officer and could be appointed by a threejudge court . My coawe shore and i coauthor and i think there are important distinctions between morrison and a special counsel like Robert Muller that distinguish them under the fuzzy wasy we know it when we see it nontest set out 30 years ago by the Supreme Court and we think we could make that case if we wanted to. But truth be told, we think that that portion of morrison vs. Olson was not just wrong, but ludicrously wrong and the much more interesting question concerns, at least us to, original constitutional meaning. Or as i prefer to call it, constitutional meaning. And as a matter of constitutional meaning, a special counsel such as Robert Mueller would obviously not was obviously not an firnor officer. Lets start with a term no logical point that courts have gotten spectacularly wrong for perhaps a century. Lets note what the appointments clause calls officers who must by constitutional command be appointed by president ial nomination and Senate Confirm ails. Congress may by law invest such inferior officers in courts of law and departments. What is other people . Doesnt actually call them anything does it. There are officers. And there are inferior officers. But surely we need some kind of catchy name for noninferior officers, dont we . Well, the courts have come up with one. Its conventional today to call ose people principal officers. The appointments clause distinguishes principal officers and inferior officers. We tried to track down the origin of that terminology. We think it go back to a Supreme Court case from 1976 called buckley vs. Vallejao. Whatever the origins the terminology is obviously wrong and has the potential to mislead badly. While this term principal officers does not appear in the appointments clause, it does appear in two other places in the constitution. It appears in something called the opinions clause which says the president may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices. The phrasing of that, the principal officer in each of the departments. Indicates that there is one and only one principal officer in each department. Meaning principal officers are the heads of departments mentioned in the appointments clause. Then theres the 25th amendment, the president ial disability clause. Parse through that, its too long to put up, it also assuming that assumes that there is one and only one principal officer in each department. That does not mean that all nonprincipal officers are inferior officerers in purposes of the appointments clause. The residual counterpart to an infearor officer is a, wait for it, superior officer. And there are many superior officers who are not principal officers. This was very clear at the Constitutional Convention. When the inferior officer provision of the appointments clause was first put forward. Mes madison claimed, it does not go far enough. Uperior officers behe heads of departments. Are in some cases to have the appointment of lesser officers. The class of superior officers is a whole lot broader than the class of heads of departments or principal officers. Others recognized it as well. Rufus king talking about the senates role in appointments did not suppose it was meant that all the most minute officers were to be appointmented by the senate but by the higher officers of the departments to which they belonged. Whether you want to call them superior officers or higher officers, the framers clearly distinguished more important from less important. Officers below the level of heads of departments in the scheme of appointment was based on that disting. So there are actually three categories of officers of the United States recognized by the constitution. Principal officers. Or heads of department. Superior or higher officers. And interior officers. And virtually all of the and inferior officers. Virtual all the discussion about the Constitutional Convention was about superior officers. The class of infeariar officers described a relatively low level groups. Footnote for con law junkies. How did that square with buckley vs. Vambings llejao from 1976 which said officers are those persons who exercise, yet, significant Authority Pursuant to the laws of the United States, end quote. How can you have lower level people exercising significant authority . Well the short answer is that we know from recent scholarship from professor jennifer mascot and others that there are a lot more officers of the United States out there than the Supreme Court wants to recognize. Officer status under the constitution actually comes not from exercising significant authority but nontrivial authority. End of footnote. All right. Special counsels of the kind contemplated by the 1999 regulations are not low level flunkies. They have all the power of a United States attorney. And it is quite clear that United States attorneys who have power to subpoena, to convene grand juries, and to indict are superior officers. They have always been subject to Senate Confirmation. To be clear, there is no direct case law for the proposition that permanent United States attorneys as well as deputy and assistant cabinet secretaries are superior officers. But there are lots of blatantly obvious propositions for which there is no authority because no authority is needed. For example, tom brady is the goat. Russell wilson was worth every penny of his 140 million. You do not need authority for these propositions. Sometimes some things are obvious. The United States code has always been so clear in providing that United States attorneys and deputy assistant, cabinet secretaries and the like are superior officers that no one has had occasion to challenge it. The one exception, since 1863, theres been an exception for interim, temporary, United States attorneys who have been appointed putetatively as inferior officers for District Courts for most of that time, most of the last 150 years. This is obviously a constitutional mistake. He key here is 1863. What was happening in 1863 that might have made it difficult to appoint United States attorneys in the usual constitutional way . Its the middle of a freaking war. Congress obviously thought it needed u. S. Attorneys to p appointed on the spot in an era with limited communications, remember, convene the senate to get appointments, its not going to happen. So you can kind of understand why congress in the midst of a civil war might think that way and not worry too much about the constitution. There really hasnt been much of an excuse in the 150 years since then. All of this begs an important question. Why are u. S. Attorneys and special counsels who act like u. S. Attorneys, superior officers, dont they answer to somebody else . What really makes an officer constitutionally superior rather than inferior . This is actually a fascinating question. When you say that a particular officer is inferior in an organizational hierarchy you could mean orte or both of two things. First you can mean that theres someone higher up in the hierarchy who can tell them what to do. Someone with can review or override their decision. Thats actually how the constitution uses the word inferior in connection with courts. And as the Supreme Court recognized in 1997, an opinion by my exboss, justice scalia, that notion of decisional hierarchy plays a role in the appointments clause as well. What he said was, generally speaking, the term inferior officer conotes a relationship with some higher ranking officer or officers below the president. Whether one is an inferior officer depends on whether he has a superior. Well if that account is a full specification of what makes someone an inferior officer, special counsel under the d. O. J. Regulations would be inferior officers because special counsels operate under the supervision of the attorney general. But than reasoning, United States attorneys would also be infearor officers because theyre also hierarchically inferior to the attorney general. So is the solicitor general, the assistant attorneys general, the associate attorney general, the Deputy Attorney general and every Single Person in the department of justice other than the attorney general and the same would be true of every other federal department because everybody behe the head answers to the head. That would be the end of the story. So if you take that notion of ire, aical organization as the exclusive basis for distinguishing inferior from superior officers, you have reduced the category of superior officers to heads of departments. To principal officers. With exactly one noninferior officer in every department. That does not pass the straight face test. It just makes such spectacular hash out of the constitution and constitutional history that it doesnt fly. In fact, there is a second possible meaning of inferior in the context of appointments that does make sense. Right . Yes. An officer who doesnt answer to anybody else in a hierarchy is by definition not an inferior officer. Must be a superior officer that much is clear. So sometimes you can determine inphonor status simply by looking at an organizational hierarchy. But theres another understand og of inferiority, another path to superior officer status that can exist even if you answer to someone else in a hierarchy. In the late 18th century, a rather relevant time period for what im talking about, a court whose decisions were not subject to review by any other court issued final decisions, nobody to review it. Could sometimes nonetheless be called an inferior court if its geographical or subject matter jurisdiction was lower than or less than some other courts. And those courts with Broader Authority would be called Supreme Courts even if they had no decisional relationship to the others. Many states during the founding era had exactly that kind of scheme with multiple Supreme Courts. And its why an early draft of article 3 of the constitution could say without embarrassment that it proposed to create quote one or more supreme tribunals. Sflithe recognizing that you could have coexisting supreme authorities. Bottom line, inferior does not exclusively mean decisional hierarchy subject to control and direction. It certainly means that much but it can also mean more. It can involve the importance and power of the office. Right . That is why its been the long standing practice of congress and the president to recognize superior officer status for all sorts of people who in theory answer to somebody else but who are really, really, really important. Deputy and assistant cabinet secretaries. Ambassadors. Deputy tonchinge. The solicitor general. United states attorneys. Right . All of them would fail inferior officer status on a pure decisional test so by the way would court of appeals and District Courts. Right . Because they answer to the Supreme Court. Does that Mean Congress could if it wanted to let the secretary of transportation appoint court of appeals as inferior officers . No. No. And no. And for exactly the same reasons you expect let the attorney general appoint a special counsel who acts like a United States attorney. Put more generally, the functions that an officer performs have two disto tinth constitutional functions. One is to separate officers from employees. The sorts of people who have to be appointed in conformance with the appointments clause and whose positions must be established by law versus the 99 of the rest of the federal work force. The second function is to distinguish within the class of officers inferior officers from superior officers. The ones with lesser duties from the ones with more duties, right . If would you determine somebody has enough duties to be a superior officer . There is no single adjective that i can come up with that solves it. Sometimes you have to make judgment calls, and sometimes they may even be close judgment calls. Somebody who exercises all the powers of the United States attorney, that is not a close call or a judgment call, and in point of fact, special counsels under the doj regulations are actually more powerful than a random United States attorney because they dont have any geographical imitations. They have nationwide jurisdiction. They can even indict foreign citizens and former Corporations Office ofmuellers special counsel did. Theres no question the office of special counsel contemplated by the regulations is a superior office. If you looked at statutes or the constitution, it is unlawful and the wayfulness all down. So you are the attorney general. You need Something Like a special counsel. You think steve and i are right. What do you do . Got 90 some odd u. S. Attorneys out there. A lot of those u. S. Attorneys have sterling reputations, welldeserved, for integrity, for being above politics. They are often actually as much the creatures of senators as they are of president s. Surely somewhere in that group you can find one who you can trust to investigate, and in point of fact, that mechanism has been used on occasion. Said former Deputy Attorney general rosenstein was once a u. S. Attorney who was given that task. John durham in connecticut is currently given that task, right . So it is possible to do. You can come up with those people, but they have to be people who have already been confirmed by the senate as superior officers that are already working for the government, which is exactly the thing that the doj regulations so you cannot do because the special counsel has to come from outside the government, so they got that exactly, precisely wrong. Or so i think. What do you think . [laughter] lawson thank you very much. [applause] lawson if people have questions, there is going to be a microphone circulating. Wait until you get the microphone in your hands before you ask your question. Thank you. I calling on people . Did you have your hand up . I will get rebecca next. Thanks for a great presentation. Still a biti am confused about the pecking order. We talked about principal , buters initially principal officers, superior officers, inferior officers, and additionale employees, assistants, others. Do we get a better understanding of exactly what these positions are . Probably not as well as we should. That is actually an excellent thought, to do it in the form of a chart. The question was ive been talking about a lot of different categories of people that work for the federal government principal officers, superior officers, inferior officers, officials, employees. What is the status of all of them . It is implicit in what we say, but do we actually lay it out graphically in a chart . No, that actually would be a smart thing to do. Heres the short version of it principal officers are a small subset of the wider class of superior officers. They cheryl the features of superior officers, meaning they have to be appointed by the president with the advice and consent of the senate. They have two functions from their principal status that other superior officers do not. One is they can receive Appointment Authority from congress to appoint inferior officers. A random superior officer cannot receive that authority. You have to be a head of a department for that. Second is they are part of the 25th amendment. That is, they get to decide if the president is disabled. A random superior officer does not have that authority. That is the constitutional significance of being a principal officer, right . The difference between being an officer and an official or employee is if you are an officer of any kind, whatever additive goes with it, you have to be appointed in conformance with the appointments clause, and your office has to be established by law. That is, i think it has to be a specific authorization. Those generalized authorizations congress has out there for the bureau of prisons offices i actually think those are constitutionally problematic. [inaudible] working on the others, hypothetically, of the argument. Im wondering what you think is the best argument to counter yours. [indiscernible] fbi officers [indiscernible] the office has to be established by law, right . [indiscernible] professor lawson great questions, as always. Let me start with the second 1 can a regulation be a law . We have to start with the context in which the word appears. It appears in the appointments clause, which shall be established by law. We actually have one of these law overview page long footnotes in the article that deals specifically with that question. When the constitution uses the always meansalmost statutes. There are times when it means sources of law other than statutes, but then it always qualifies that with rings like the law of nations, right . When the constitution uses the sense,w in a general uniformly always, it refers to statutes. In the context of the established by law provision in the appointments clause, no, i dont think a regulation can satisfy that, but we do actually address that point specifically in the article. As per section 533, over the last year and a half, there has been litigation over this, and to the extent courts do anything other than say we dont want to think about this, lets cite inapplicable precedent, the section they have latched onto is either an in section 515 or section 533. In United States v nixon, although it never addressed the question because it was not raised or argued by the parties, had this one paragraph of dictum. What did they cite . They cite section 533. If your are going to pick the strongest statutory argument, i think you hit exactly the right one, section 533. The reasons why i dont think it gets you there are exactly the reasons that i gave. I do them in reverse order. To me, the most powerful is the provision in title 18 section 40, 41 dealing with the bureau they are givene the ability to appoint officers. That, to me, is the strongest argument for reading this. The contextual arguments i gave you about where it is located in the United States code and what section it is for people who are statutory adjudication junkies, it is actually a matter of considerable debate how much consideration when he gives two titles, codifications, and so forth. These notifications we are getting way off topic sometimes are and sometimes are not legally significant, right . The United States code is just people putting together stuff that congress passed. What Congress Passes goes into this thing called the statutes at large. That is the law. Congress sometimes looks at these codifications and says lets adopt those as law, and it adopts them as law. About half the provisions in the United States code have been adapted as law. The contextual requirement does require one to give some measure of weight to where the provision is located, what part of title 28 it appears in, what the things are accompanying it those are all contextual kinds of arguments, which are perfectly good arguments as a matter of statutory interpretation. They are not as knockdown drag and i like to have our arguments be. I think once you have that kind of Authority Given to the attorney general, its perfectly clear that congress meant for the attorney general to appoint officers for prisons but nowhere else, but yeah, that is absolutely the strongest statutory argument out there, no question. Likegain, that is kind of talking about the best right tackle on the seattle seahawks. [laughter] lawson he stinks. Well, i hate to call on my son, but hes the only hand in the air. [laughter] professor lawson come on, people. For asking ay when youre saying the evidence against 533 being evidence for special counsel is 541, where they passed as part of the same thing, or professor lawson good question. One they passed all as competence of statute, and the answer is no. That, too raise you should be in law school. [laughter] raisesor lawson that the question of when you deal with an overall contextual scheme, you try to contextualize them others or treat each individual provision as its own. Suppose we take this completely out of context. The attorney general may appoint officials to detect and prosecute crimes against the United States. Does that mean the attorney general can appoint 470 six solicitors general, 933 United States attorneys, 2008 hundred 77 assistant attorneys general . Remember, we are not looking at the provision that says one solicitor general, when deputy. All youve got is that. The obvious answer would be yes. Government is not going to argue that. They are just not. Whatever relations you want to draw between one provision and the rest of the United States code, there comes a point where taking the provision in isolation simply leads to a slope that is so slippery that, friction no amount of is going to keep you from falling into the cavern, but it actually is a very profound question about how you relate statutes to each other. Nice one. Stacy i think was first. Then jack. Questionally had a about the language in 515 a. If you could go back to that, and this may be easily dismissed, but the attorney blah or any attorneys specially appointed. A crossr lawson it is reference to 533. Is it absolutely clear that it is referencing that provision . Yeah, i suppose so. Professor lawson when the District Court relied on this provision did so, it carefully tense of every single verb. They are dealing with what you can do with those people once you have them. Got it. My other question is about superior versus inferior officers and if it is possible to distinguish u. S. Attorneys from the special counsel just based on the scope of their independence, right . Haveattorneys actually very broad authority, right, to investigate and prosecute across a wide range of issues and defendants, really anything that , and isthin federal law it possible to distinguish the two based on just that scope of independence . Toi think it is possible distinction, but it suggests special counsels actually have brought authority than u. S. Attorneys because they are not geographically bound, whereas u. S. Attorneys are. In terms of their degree of supervision, everybody in the department of justice is subject to absolute unconditional super supervision by the attorney general if the attorney general chooses to exercise it. The attorney general usually does not choose to exercise it, but whatever degree of independence u. S. Attorneys have is not a function of statutory command. It is a function of tradition, practice, and the practicalities of the situation. Attorney general can physically place it in receivership and then transfer the function to somebody that the attorney general actually trusts. Everybody is supervised by the attorney general, but there are differences in the scope of their powers, but steve and i think it cuts the other way, suggesting special counsels under the regulations are actually more powerful than u. S. Attorneys. All right, we will talk more about that later. Professor lawson absolutely. Jack. We got to get the microphone over. It took me a while to figure out which question i wanted to ask you because you have made so many really weak arguments that [laughter] that itsointed out completely you know, its just a creation of judges to try tomake order out of chaos make cross statutory provision arguments like the one about the difference between the bureau of prisons and the other special toorneys, but the two i want focus on is first of all, i think you are confusing Congress Decision to leave the appointment of an official with the president with the advice and consent of the senate with their status as a superior officer. That is, there are reasons political reasons and policy reasons why congress would want to leave the appointment of many inferior officers in the president with the advice and consent of the center because they are afraid of who might get appointed to do things that are important, but where they are not necessarily required to be done that way. That leads to my other point, which i think you are completely wrong about, which is the idea that the special counsel somehow was a principal officer or superior officer because everybody in the department of justice other than the attorney general is an inferior officer based on this statute. So this person has a very limited jurisdiction. They can be fired at will by the person that appointed them, the attorney general or acting attorney general, and that does not make someone under any test that even the great late justice scalia, who wrote the definitive definition of a principal officer or superior officer would say. Are just confusing the idea of what congress has done politically with what the constitution requires. Professor lawson two great points. Let me take the second one first involving the late great justice scalia. His discussion in edmond versus United States is not in fact the definitive account of what makes someone inferior or superior, but actually think Justice Souter in his concurring opinion got it right in that case. Im going to push back a little on that. I mean, if you want to take the position that there really is only one noninferior officer in every federal department, that is a very, very difficult position to square with anything and everything we know about the appointments clause, both textually and historically. It is not a linguistically impossible position to take, but i think it is a pragmatically pragmatic not in the sense pragmatics as a branch of the philosophy of language pragmatically very difficult position to take on that. With respect to the first, im actually going to agree with you to an extent. My coauthor is much more inclined to make arguments from practice than i am. I dont think the practice tells you a whole lot about what the constitution actually says because the government got it wrong from day one. Literally day one. Literally, the first statute ,nacted by the First Congress flagrantly unconstitutional, not even a close question. Relying on the practices of early congresses and president s as evidence of constitutional meaning is a very treacherous thing. Im inclined not to do that. Attorneys, that u. S. Deputy cabinet secretaries and so forth have traditionally been subject to president ial nomination and senate concert Senate Confirmation, i am inclined to agree with you. I think that can over a large range of cases reflect a policy decision by Congress Rather than a constitutional judgment. I think it just happens to correspond over most of that range with the correct constitutional analysis based on the pragmatics that i just described. I dont rely personally as much coauthorctice as my does on this. I think im 74 with you on that. But i think the distinction noninferiorrior and officers as a matter of 1788 meaning has a considerably. Igger bite theres a question in front here and then one in back. Professor lawson ill be here as long as people want me to do this. Thank you, everyone, for coming. We are really grateful. [applause] [captions co ,