In Re Grand Jury Investigation

916 F.3d 1047 (D.C. Cir. 2019)


The Attorney General is the head of the Department of Justice. The Attorney General must be appointed by the President with the advice and consent of the Senate. The Deputy Attorney General must be appointed by the President with the advice and consent of the Senate. Congress has 'vested' in the Attorney General virtually 'all functions of other officers of the Department,' and has empowered the Attorney General to authorize other Department officials to perform the functions of the Attorney General. Congress has also authorized the Attorney General to commission attorneys 'specially retained under the authority of the Department' as 'special assistant to the Attorney General or special attorney,' and provided 'any attorney specially appointed by the Attorney General under law, may when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal . . . which United States attorneys [are authorized by law to conduct.' The Attorney General may appoint special counsels and define their duties. The Ethics in Government Act of 1978 authorizes the appointment of an independent counsel upon a referral of a matter by the Attorney General to a three-judge court that could name an independent counsel. The Department issued regulations to 'replace' the Act with a procedure within the Executive Branch for appointing special counsels. A special counsel is to be afforded wide discretion in the conduct of the investigation while 'ultimate responsibility for the matter and how it is handled' resides in the Attorney General. The Attorney General establishes the Special Counsel's jurisdiction and determines whether additional jurisdiction is necessary. The Special Counsel is required to 'comply with the rules, regulations, procedures, practices, and policies of the Department of Justice.' The 'Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.' The Special Counsel must notify the Attorney General of important events in the investigation under the Department's Urgent Reports guidelines. The regulations provide that after review the Attorney General may conclude that a contemplated action is 'so inappropriate or unwarranted under established Departmental practices that it should not be pursued.' The Attorney General has authority to discipline and to remove a Special Counsel for 'misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.' Rosenstein, Deputy Attorney General appointed P to serve as Special Counsel for the Department to investigate the Russian Government's efforts to interfere in the 2016 presidential election and 'related matters' and to prosecute any federal crimes uncovered during the investigation. P issued multiple grand jury subpoenas requiring D to produce documents and to appear before the grand jury. D failed to appear, and Special Counsel moved to compel his testimony and for an order to show cause why D should not be held in civil contempt for failure to appear before the grand jury. D filed a motion to quash the subpoenas on the ground that the Special Counsel's appointment violated the Appointments Clause of the Constitution. The district court denied the motion and held D in civil contempt. D claims P's appointment is unlawful because: (1) the Special Counsel is a principal officer who was not appointed by the President with the advice and consent of the Senate; (2) Congress did not 'by law' authorize the Special Counsel's appointment; and (3) the Special Counsel was not appointed by a 'Head of Department' because the Attorney General's recusal from the subject matter of the Special Counsel's investigation did not make the Deputy Attorney General the Acting Attorney General.