## Facts

- Acting Attorney General Rod Rosenstein appointed Robert S. Mueller III as Special Counsel to investigate Russian interference in the 2016 presidential election and related offenses.
- Acting under that appointment, the Special Counsel issued grand-jury subpoenas to Andrew Miller seeking documents and Miller’s testimony.
- Miller refused to produce documents and refused to appear before the grand jury.
- The U.S. District Court for the District of Columbia rejected Miller’s challenge to the subpoenas and held him in civil contempt to coerce compliance.
- Miller appealed, arguing that the Special Counsel’s appointment violated the Appointments Clause because Mueller allegedly functioned as a principal officer who required presidential nomination and Senate confirmation.

## Issues

1. Whether Mueller, as Special Counsel, was a “principal officer” who had to be appointed by the President with Senate confirmation, making his appointment by the Acting Attorney General unconstitutional under the Appointments Clause.
2. Whether federal statutes and DOJ regulations authorized the Acting Attorney General to appoint a Special Counsel with the prosecutorial powers Mueller exercised, including issuing grand-jury subpoenas.
3. Whether the district court’s civil-contempt order enforcing the subpoenas was valid given Miller’s constitutional challenge to the Special Counsel’s authority.

## Decision

- The D.C. Circuit affirmed the district court’s civil-contempt order.
- The court held that Mueller was an “inferior officer,” not a principal officer, because he was directed and supervised by the Acting Attorney General, who could define, limit, and revise Mueller’s jurisdiction and could countermand significant decisions.
- The court concluded that the Acting Attorney General had statutory authority—together with DOJ regulations—to appoint Mueller and delegate prosecutorial functions to him.
- Because Mueller was lawfully appointed and authorized, the grand-jury subpoenas were valid, and Miller could be compelled to comply through civil contempt.

## Legal Principles

- Under the Appointments Clause, principal officers must be appointed by the President with Senate confirmation, but Congress may allow the appointment of inferior officers by the President alone, courts of law, or heads of departments.
- An “inferior officer” is one whose work is directed and supervised at some level by a principal officer; supervision may include authority to set the officer’s jurisdiction, review major actions, and remove the officer.
- Statutes vest DOJ functions in the Attorney General and permit delegation of those functions within the Department (including commissioning special attorneys and directing them to conduct criminal proceedings). See, e.g., 28 U.S.C. §§ 509–510, 515, and 533.
- DOJ Special Counsel regulations, combined with the Attorney General’s statutory delegation authority, may support the appointment of a Special Counsel with authority to investigate, seek indictments, and use the grand-jury process, so long as DOJ leadership retains supervisory control contemplated by the regulations.
- A civil-contempt order entered to enforce a grand-jury subpoena supplies a vehicle for appellate review of a subpoena recipient’s objections, including constitutional objections to the authority of the official who issued the subpoena.

## Conclusion

The D.C. Circuit affirmed the civil-contempt order against Andrew Miller for refusing to comply with grand-jury subpoenas issued by Special Counsel Robert Mueller, holding that Mueller was an inferior officer supervised by the Acting Attorney General and was validly appointed under federal statutes and DOJ regulations, so the subpoenas and contempt sanction were lawful.


In re Grand Jury Investigation, 916 F.3d 1047 (2019)