The D.C. Circuit Considers the Constitutionality of Bob Mueller's Appointment
The legal argument underlying all this ferment was never any good. But ignoring the naysayers—including one of us (Conway), who argued on Lawfare that it was clearly wrong—lawyers with clients involved the Mueller investigation leapt on it and began arguing it in court.
Thursday they ran into a buzz saw: the U.S. Court of Appeals for the D.C. Circuit, where the case—In Re Grand Jury Investigation—was argued before a courtroom with a couple dozen reporters and the spectator seating section half full.
The case began strangely. It was as though a ghost hovered over the courtroom—the ghost of attorneys general past. The presiding judge, Karen LeCraft Henderson, began with an oblique instruction to counsel: that argument should proceed as though it happened Wednesday morning, not Thursday, and without reference to what she called the “events” of Wednesday afternoon—by which she meant the firing of Jeff Sessions. On those events, she said, the three-judge panel would likely ask for supplemental briefing. President Trump’s name never came up. (This morning, the D.C. Circuit issued this order calling for supplemental briefing “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”)
So the argument proceeded as though the president had not just dismissed the attorney general over precisely the investigation at issue in court. It proceeded as though there were no issue about whether the new acting attorney general, and thus Mueller’s new boss, Matthew Whitaker, means to rein the investigation in, or shut it down altogether. It proceeded as though there were no issue about whether Whitaker, who, like Mueller, hasn’t been confirmed by the Senate, was validly appointed under the very same Appointments Clause under which Mueller’s appointment is being challenged at this very argument. (In fact, one of us argued just yesterday that Whitaker’s appointment does indeed violate the Appointments Clause.) The argument proceeded as though we were living through ordinary times and this was just another ordinary case.
https://www.lawfareblog.com/dc-circuit-considers-constitutionality-bob-muellers-appointment?fbclid=IwAR0fbFQaiYgB_rbX5SEKuzR9tU1FrcKnYAC7y8mibSUgXWO57MaFHSgUGX0