[00:00:00] Speaker 04:
Mr. Kamenor, before you begin, we have caucused and we would request counsel this afternoon to argue this case as if it were being argued yesterday morning.

[00:00:26] Speaker 04:
And in other words, at the events of yesterday,

[00:00:31] Speaker 04:
do not play this afternoon.

[00:00:33] Speaker 04:
And we will most likely be asking for supplemental briefing.

[00:00:38] Speaker 04:
And if we ask a question about the events of yesterday afternoon, of course, feel free to answer.

[00:00:45] Speaker 04:
Well, answer it.

[00:00:47] Speaker 03:
All right.

[00:00:47] Speaker 00:
Thank you, Your Honor.

[00:00:51] Speaker 00:
Good afternoon, Your Honors.

[00:00:52] Speaker 00:
May it please the Court, Paul Kamenar.

[00:00:55] Speaker 00:
for the appellant Andrew Miller and the council's tables, Mr. Martin, the council for the amicus.

[00:01:00] Speaker 00:
We present three arguments challenging the special council's appointment.

[00:01:05] Speaker 00:
First,

[00:01:06] Speaker 00:
The appointment was unconstitutional because there is no statute specifically authorizing its appointment.

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Second, the special counsel is a principal officer.

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It was not so appointed by the president and confirmed by the Senate.

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And third, even if he is a special counsel, as he argues, as an inferior officer, he was not appointed by the head of the department.

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So with your honor, I will focus on the officer arguments, and my micas will focus on the statutory argument.

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With respect to the principal officer argument, I'd like to make three points, if I may.

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First, the special counsel does exercise extraordinary prosecutorial and governmental powers.

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Second, he lacks significant direction and supervision, which is the standard here, by the acting attorney general.

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And third, the regulations that govern him protect him from removal except for good cause.

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That with respect to the powers, even as Judge Hall recognized below quoting Attorney General Robert Jackson, quote, the prosecutor has more control over life, liberty, and reputation than any other person in America.

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His discretion is tremendous.

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And this court even echoed that when it said, quote, the framers of the Constitution were justly fearful of this power.

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And since 1789, all U.S.

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attorneys have been nominated by the President and confirmed by the Senate.

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That's now codified into statute.

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And therefore, we argue that the special counsel here has all the power of the U.S.

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attorneys

[00:02:45] Speaker 00:
In fact, he has even more so.

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He can bring indictments in multiple jurisdictions, in the Eastern District of Virginia, in this district, and in other districts.

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So he's like a US attorney at large.

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And he's bringing indictments against foreign officials, foreign military officers, et cetera.

[00:03:05] Speaker 01:
So calling him US attorney at large presumes that US attorneys are principal officers, which, of course, is an issue that we can get to.

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But before we talk about that,

[00:03:13] Speaker 01:
One could say largely the same things about the appointments that were at issue in both Sealed Case and Morrison.

[00:03:23] Speaker 01:
Those were officials who had many of the same attributes that you're talking about here.

[00:03:29] Speaker 01:
What's the basis for distinguishing

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Start with Seale case, for example.

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What's the basis for saying that?

[00:03:35] Speaker 00:
Well, again, Your Honor, I think Seale case preceded the cases in Edmond and Intercollegiate, which I think puts a gloss in terms of what kind of power the person has in the removal

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ability in terms of the supervision and so forth.

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So, Your Honor, I think, and that sealed case hasn't been really cited, it's almost in desperate to it in terms of that issue of whether you're here.

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Are you saying we're not bound by it?

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Well, Your Honor, as my amicus will

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talk about in terms of whether there's even proper statutory authority for that case to reach that conclusion.

[00:04:16] Speaker 01:
But on the constitutional part of it, it had an appointment clause resolution, too.

[00:04:19] Speaker 00:
Right, it did have an appointment clause, Your Honor, but I think that that case has to be read in the lens of this Court's more recent decision in intercollegiate broadcasting and also in the Edmund case.

[00:04:31] Speaker 01:
And with that, you have to look at other factors other than the narrow issue there in terms of... Well, let's just suppose hypothetically, you have an argument that we need to view it through the lens of these subsequent cases, but let's just suppose hypothetically, and I don't mean to suggest that I'm rejecting that, but that I think the sealed case governs us.

[00:04:50] Speaker 01:
If I do think that, then what would be your argument as to why a sealed case would it be controlling on the Appointment Clause?

[00:04:57] Speaker 00:
Well, I think, Your Honor, then I would go into that there's a lacking of substantial supervision and that the removability for cause, as even Judge Friedrich indicated, would show that he's more on a principal officer side of the scale.

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than he is on an inferior officer.

[00:05:19] Speaker 01:
But if this case... That has to do with... Now you're focused on the good cause provision in the regulation.

[00:05:24] Speaker 00:
That's right.

[00:05:24] Speaker 01:
That would be the ground for distinguishing.

[00:05:26] Speaker 01:
That's right.

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But there was a good cause limitation in sealed case also.

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Right, Your Honor, there was.

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But I think if you look also with the Edmond case that was a more recent Supreme Court case, there they were removable at will.

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And I think that, along with the Unicollegiate case, would indicate that he is a principal officer instead of an inferior officer.

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I admit it's a difficult issue if we were arguing this the day after the Ingray Shield case came down.

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But I think there's been a lot of

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jurisprudence since then that I would like to... So you're relying on the jurisprudence since then.

[00:06:05] Speaker 01:
So for example, so Morrison says that Morrison said that the official was an inferior officer even though there was a good cause limitation that was in a statute.

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It wasn't even a regulation that was within the control of the department.

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It was a statute.

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And your argument as to Morrison, even though it has a good cause limitation.

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That's right.

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I think that since Morrison there's been subsequent

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decisions by the Supreme Court that looks at other factors that you weigh with that good cause.

[00:06:34] Speaker 01:
So do you think that then if there's been subsequent decisions and suppose Congress, it may be a fanciful hypothetical, but suppose Congress reenacted the Ethics in Government Act?

[00:06:43] Speaker 01:
Just suppose Congress did.

[00:06:44] Speaker 01:
Okay.

[00:06:46] Speaker 01:
Are you suggesting that if Congress reenacted the Ethics in Government Act that we wouldn't be bound by Morrison?

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Your Honor, if they did an exact duplicate of that, I think

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that statute would still have to be looked at the lens of later jurisprudence.

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And I think that the Supreme Court would revisit their Morrison case.

[00:07:06] Speaker 01:
But for us, so for our purposes, do you think that if Congress just reenacted the Ethics in Government Act, that we wouldn't be bound by Morrison?

[00:07:17] Speaker 00:
No, I would think, it's a difficult question, but I would think you'd have to look at

[00:07:21] Speaker 00:
cases subsequent to Morrison, the Edmund case and your case putting a gloss on that.

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And that's where it gets into whether there's substantial supervision and control over that, even though there was also a good cause exception in both Morrison and in this case.

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I think that's where we would say our case comes down.

[00:07:43] Speaker 01:
Okay, so you're relying on

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You're relying on things that happened after Morrison and Seeld's case.

[00:07:51] Speaker 01:
It sounds like your bottom line with respect to good cause.

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You're not taking on the proposition that if Morrison and Seeld's case apply, that this case is controlled by them.

[00:08:02] Speaker 00:
What you're saying is... Well, Your Honor, I guess also if you look at even what happened with respect to the Ethics and Government Act, the independent counsel, there they looked at the statute in terms of

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separation of powers, whether the court can appoint the independent counsel.

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But with respect to that particular case, they did more of an as-applied examination of what kind of

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duties that were involved in.

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I think this might sort of clear it up if I could refer to what Professor Akhil Amar said in terms of whether Congress can reenact a similar statute.

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He said, the Mueller investigation is thus vastly wider and more consequential for the Republic than was Alexia Morrison's.

[00:08:55] Speaker 00:
Even under the Morrison test,

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It would be preposterous to say that Robert Mueller is just like Elixir Morrison conducting an investigation of small and limited scope.

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So I would think there, if the court in Morrison had this case before it, these facts, I think the court would come down the other way and rule that he would be a principal officer.

[00:09:17] Speaker 01:
So you need Morrison to be contingent on what in fact was going on, not the authority.

[00:09:24] Speaker 00:
I think they did look at what was going on.

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It was one small investigation of one former official, whether that person presented misleading testimony to Congress.

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It wasn't as widespread as what's going on here in terms of this

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special counsel who's acting like a U.S.

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attorney at large.

[00:09:45] Speaker 00:
And I think that your later cases show that even with like in the copyright case, you said that, oh, the Copyright Tribunal Board, they can set rates for copyrights.

[00:09:55] Speaker 00:
And this shows that they have principal officer power, at least one factor.

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And my argument is, well, if setting rates are so powerful for a government agency, all the more so

[00:10:07] Speaker 00:
Indicating someone, incarcerating them, et cetera, also shows the excess power that that person has.

[00:10:14] Speaker 00:
So I think looking at economic rates for a company versus the liberty interest of an individual, I would think that kind of a power would basically overcome the issues of the other factors that we're talking about.

[00:10:30] Speaker 01:
Okay, one more question along these lines and then

[00:10:33] Speaker 01:
Maybe you can shift.

[00:10:36] Speaker 01:
I'll let you out so you can shift.

[00:10:38] Speaker 01:
The question is this.

[00:10:39] Speaker 01:
So it sounds like at least part of what you're focused on with respect to what comes along after Morrison is the existence of a good cause limitation in the regulations here.

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And my question is this.

[00:10:51] Speaker 01:
Suppose that the good cause limitation could be rescinded by the acting attorney general.

[00:11:01] Speaker 01:
Or, maybe more pointedly, suppose that the order appointing the special counsel could be amended so that it didn't incorporate the good cause regulation.

[00:11:10] Speaker 01:
Either way, the good cause part of it's out.

[00:11:13] Speaker 01:
If that authority exists to do that, then at that point it seems functionally equivalent to at will.

[00:11:19] Speaker 00:
Yeah, it would be.

[00:11:21] Speaker 00:
And our argument is that, a couple arguments are that.

[00:11:24] Speaker 00:
Number one, in fact, that's what Judge Friedrich said, is that the powers that the special counsel has suggest he is a principal officer.

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However, if they revoke the regulations, that would revert him back to the inferior officer status.

[00:11:39] Speaker 00:
Our answer to that is, you have to look at what kind of

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supervision is going on under the current regime and the current structure under the special counsel regulations.

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Not some hypothetical that, hey, don't worry, he's really not a principal office because we might be able to, or the special counsel might in the future, revoke these regulations, therefore make him an inferior officer that he could basically fire him at will.

[00:12:06] Speaker 01:
I didn't quite follow that part of your argument because it seems like we're always looking at the potential use of power.

[00:12:12] Speaker 01:
Even when we're talking about at-well removal, it's not that the removal actually has to be exercised.

[00:12:16] Speaker 01:
It's that the specter of removal exists as a constraint.

[00:12:21] Speaker 00:
Right.

[00:12:21] Speaker 00:
But that specter, I think, Your Honor, and it's our position in our briefs, is that it has to look at the real-world effect of what's happening to my client and others who are being prosecuted by

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by the special counsel.

[00:12:34] Speaker 00:
It basically doesn't really make our life better knowing that, oh, we're being prosecuted, but don't worry.

[00:12:42] Speaker 00:
They can revoke the regulations at some point.

[00:12:45] Speaker 01:
So then your argument would be that even if there weren't a good cause limitation in the regulation, even if that were rescinded or the order were amended such that it didn't exist so that the special counsel was subject

[00:13:01] Speaker 01:
to the functional equivalent of at will, that still wouldn't matter to you.

[00:13:07] Speaker 00:
If tomorrow he were to revoke the regulations and make them an at will, that's fine, except for all those before that, I would argue, that those still were unconstitutional because the regulations were not revoked.

[00:13:20] Speaker 00:
Going forward, if the regulations were revoked and he was an at will prosecutor, then I would say

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he's an inferior officer.

[00:13:29] Speaker 00:
But then we still get to the fact of whether he was appointed by the head of the department, which is, and one more point for arguing this is if it was yesterday, those regulations cannot be revoked by the acting attorney general.

[00:13:44] Speaker 01:
But that's why I focused on the amendment of the order.

[00:13:46] Speaker 01:
So if we're looking at this.

[00:13:48] Speaker 01:
The amendment of the order.

[00:13:50] Speaker 01:
Yeah, so the order appointing the special counsel.

[00:13:52] Speaker 01:
As I understand it, the order appointing the special counsel makes the regulations applicable.

[00:13:59] Speaker 01:
And so the person who, anyone who has the authority to amend the order could amend the order so that it didn't incorporate the good cause regulation even if somebody else would have to rescind the regulation.

[00:14:15] Speaker 00:
Yes, I hear what you're saying.

[00:14:17] Speaker 01:
Does that make sense?

[00:14:18] Speaker 01:
And then if that's true,

[00:14:19] Speaker 01:
it would be the acting AG who could amend the order, without regard to whether the regulation were rescinded.

[00:14:24] Speaker 00:
It would just be an amendment of the order for purposes of... Well, again, I think it's the same analysis, whether you're revoking the regulation or revoking that part of the regulation that's in the order that was issued.

[00:14:39] Speaker 00:
In either case, there has to be an analyzing the real today impact of what that has in terms of the powers being exercised,

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by the special counsel.

[00:14:50] Speaker 00:
Again, not some hypothetical.

[00:14:51] Speaker 00:
Well, he could.

[00:14:53] Speaker 01:
Just to be clear, that gets back to your argument that it actually has to have happened.

[00:14:56] Speaker 00:
That's right.

[00:14:57] Speaker 01:
But it deals with the issue that you raised about who can do it.

[00:15:01] Speaker 01:
That's right.

[00:15:02] Speaker 01:
Right.

[00:15:02] Speaker 01:
So on the who can do it point, if it's true that it's the order incorporating the regulation that matters rather than somehow the regulation applies of its own force, then as long as somebody can amend the order,

[00:15:16] Speaker 01:
to eliminate the incorporation of the good cause regulation that deals with that.

[00:15:23] Speaker 00:
Sure, but again, our argument on both cases is that it has to be actually done.

[00:15:30] Speaker 03:
So let me ask you on the supervision question.

[00:15:35] Speaker 03:
We have the language that you've

[00:15:38] Speaker 03:
relied on in your brief, but do we have any information about what has actually happened in the exercise of those powers of supervision?

[00:15:49] Speaker 00:
Yes, Judge Rogers, that's an excellent question, and let me, we don't, to answer it briefly,

[00:15:58] Speaker 00:
No, there's really no evidence except one evidence that was given by the special counsel in the brief.

[00:16:07] Speaker 00:
We argue that the supervision is basically, there's no real supervision going on.

[00:16:12] Speaker 00:
I know that.

[00:16:13] Speaker 03:
So my question really is, where do you get that the supervision that you say is required is prohibited or not allowed under

[00:16:28] Speaker 00:
If you look at, as Judge Friedrich did, look at the structure of what this supervision is, it's so open-ended where the difference that's given to the special counsel by the acting attorney general is such that there's no real supervision going on here.

[00:16:51] Speaker 03:
Well, I understand your argument about making final decisions, but I wonder whether or not

[00:16:58] Speaker 03:
Hypothetically, the deputy could have given a list of instructions orally to the special counsel about all the things that needed to be reported to him for his review, consideration, giving all deference, but nevertheless, he's going to be the ultimate decision maker.

[00:17:20] Speaker 00:
Well, he's not the ultimate decision maker, because according to the regulations, whether it's by the full regulations or amended to the order, if you look at, as Judge Friedrich did, 600.7,

[00:17:35] Speaker 00:
And it's 648.

[00:17:37] Speaker 00:
It basically only requires the special counsel to, at his own discretion, consult with the attorney general.

[00:17:46] Speaker 03:
So that's important, getting that.

[00:17:47] Speaker 00:
Yeah.

[00:17:48] Speaker 03:
In other words, it doesn't say under no circumstances shall the attorney general ask for more reporting.

[00:17:55] Speaker 00:
That's correct.

[00:17:57] Speaker 03:
Suppose the deputy has asked for reporting.

[00:18:01] Speaker 03:
And my point is that the way I read the record is we just don't know what is going on.

[00:18:08] Speaker 03:
That's correct.

[00:18:08] Speaker 03:
So from the legal argument, you have to or do you have to argue that it would be impermissible for

[00:18:17] Speaker 03:
the Deputy Attorney General to exercise the type of substantial supervision that you say would be required.

[00:18:26] Speaker 00:
The special counsel of the government argues that these regulations are binding as law on them.

[00:18:31] Speaker 00:
Therefore, the special, the supervising or so-called supervising officer here

[00:18:40] Speaker 00:
can maybe ask for that, but the special counsel could say, it's my discretion where they need to talk to you.

[00:18:47] Speaker 00:
And if the acting attorney judge says, well, wait a minute.

[00:18:49] Speaker 00:
I'm supervising you.

[00:18:51] Speaker 00:
I'm going to fire you for that.

[00:18:53] Speaker 00:
He can't do that because these regulations prohibit that unless there was a, and as Judge Friedrich said,

[00:19:00] Speaker 00:
some action that was, quote, so inappropriate in terms of what our policies are that are proper to justice.

[00:19:06] Speaker 03:
Well, what I'm getting at is what the goose for the gander, you know, that sort of argument.

[00:19:11] Speaker 03:
What may be inappropriate to one deputy attorney general may not be inappropriate to another.

[00:19:16] Speaker 00:
That's right, Your Honor.

[00:19:17] Speaker 00:
That's right.

[00:19:17] Speaker 03:
The question is, from the court's point of view, given the significance of this particular issue, what must we decide?

[00:19:28] Speaker 03:
In other words,

[00:19:29] Speaker 03:
Your argument, as I understand it, is that the language allows this freewheeling operation.

[00:19:37] Speaker 03:
That's correct.

[00:19:37] Speaker 03:
And that is totally impermissible for an interior office.

[00:19:42] Speaker 00:
And you can rule just on that alone.

[00:19:43] Speaker 00:
Now, I wanted to point one factual thing.

[00:19:46] Speaker 00:
When pressed, what kind of actual supervision is there, the special counsel said, oh, he's being supervised because his jurisdiction was expanded.

[00:19:55] Speaker 00:
And these two, District of Virginia, to go beyond the Russia investigation.

[00:19:58] Speaker 00:
Well, that would suggest that, wait a minute, you're really giving the special counsel free reign.

[00:20:03] Speaker 00:
So there is no record evidence in terms of what kind of supervision is going on.

[00:20:08] Speaker 00:
And maybe the district court should have an opportunity to take some record evidence to see the proof in the pudding here in terms of what kind of supervision is going on.

[00:20:18] Speaker 00:
But I think you can rule in our favor simply on the fact that these regulations that Judge Friedrich said

[00:20:25] Speaker 00:
are so ephemeral and illusory that there is really no, and as this court said, significant supervision and authority.

[00:20:34] Speaker 00:
And my time is up.

[00:20:35] Speaker 00:
I'd like to get to the revocation of the regulations argument.

[00:20:40] Speaker 00:
But I think we've already addressed that in terms of whether they can.

[00:20:42] Speaker 01:
I have one question on the line of the Judge Rogers' engagement with you, which is in terms of the scope of authority and the degree of actual supervision.

[00:20:52] Speaker 01:
So it sounds like what you're saying is we

[00:20:54] Speaker 01:
somebody would need to actually look to ask what actual supervision was being rendered as opposed to the supervision that would be allowed under the... Well, I think the court might be able to do that.

[00:21:06] Speaker 00:
I think, though, you don't have to do that because, as Judge Friedrich said, just the mere structure shows that there is no

[00:21:14] Speaker 00:
authority for this kind of meaningful supervision.

[00:21:17] Speaker 00:
It's more illusory.

[00:21:18] Speaker 00:
He can indict without consulting the acting attorney general.

[00:21:26] Speaker 00:
But if he wanted to go further and press the special counsel saying what kind of actual supervision is going on, that would get into something that would satisfy your interest on it.

[00:21:38] Speaker 01:
All of that was true in Seale, Case, and Morrison.

[00:21:40] Speaker 01:
But we've been around that.

[00:21:42] Speaker 01:
So let's graduate to Edmond.

[00:21:44] Speaker 01:
So even if we assume that Sealed Case and Morrison don't exist and we're only talking about the universe as if they didn't exist and we're only talking about Edmund, in Edmund it was also the case that there was no direct supervisory authority to deal with individual decisions.

[00:21:57] Speaker 01:
And so it wasn't the case that there was, I don't think.

[00:22:02] Speaker 01:
the kind of actual, on-the-ground, meaningful day-to-day supervision of the kind you're talking about, but nonetheless the Supreme Court said that it was an inferior officer supervision.

[00:22:11] Speaker 00:
Well, I think the difference there was that in Edmund, the officer in question there could be fired at will, and therefore when you're balancing these other factors, and as this Court brought it all together in the intercollegiate case,

[00:22:27] Speaker 00:
showed that these all factors weigh together.

[00:22:31] Speaker 00:
So even though the supervision may have not been as extensive in the admin case.

[00:22:38] Speaker 01:
But if it's the firing at will, then once we are where we were before, which is that the order can be amended such that there's the ability to remove the good cause limitation, then it seems like

[00:22:51] Speaker 00:
we've dealt with that issue, and so then we're on all fours with that.

[00:22:54] Speaker 00:
That's correct, Your Honor.

[00:22:56] Speaker 00:
I would agree to that.

[00:22:57] Speaker 00:
But if you look at, in terms of what this Court said, in intercollegiate

[00:23:06] Speaker 00:
that shows whether substantial supervision and oversight, again, it's not here, whether he lacks the power to render a final decision unless he gets approval.

[00:23:16] Speaker 00:
And again, here the special counsel doesn't need to get

[00:23:22] Speaker 00:
pre-approval for issuing indictments.

[00:23:25] Speaker 00:
And then, of course, we get into the removable at will.

[00:23:29] Speaker 00:
And we think that the special counsel flunks all those three factors that you've laid out in the intercollegiate decision.

[00:23:36] Speaker 00:
And thus, he's not an inferior officer.

[00:23:39] Speaker 00:
As you said, an intercollegiate, that is a principal officer.

[00:23:44] Speaker 00:
And then what you all did was struck down the statutory provisions regarding the

[00:23:53] Speaker 00:
the good cause exception.

[00:23:55] Speaker 00:
So I think Your Honor, again I see my time is up, but I would argue that looking at this case through the lens of intercollegiate and admin that he does exercise principal officer powers and the fact that he might be able to revoke it again is in our view irrelevant to the legal framework of what's happening today under that

[00:24:20] Speaker 00:
If I may get to my inferior officer argument?

[00:24:25] Speaker 04:
Okay, why don't you take a couple minutes?

[00:24:26] Speaker 00:
Yeah, this would just take a minute because I think this is the easy one here because it's very clear that if he is an inferior officer, as he asserts he is, under the Constitution he has to be appointed by the head of the department.

[00:24:38] Speaker 00:
Who was the head of the department?

[00:24:40] Speaker 00:
It was the Attorney General, Jeff Sessions.

[00:24:43] Speaker 00:
In this case, he was appointed by Rod Rosenstein as so-called acting Attorney General.

[00:24:49] Speaker 00:
And we've argued in our brief that although Jeff Sessions recused himself from the investigation, he cannot recuse himself from his constitutional duty to appoint the investigator.

[00:25:02] Speaker 00:
any more than the President can say, oh, I'm recused from appointing the GSA director because I own property that may be subject to his jurisdiction.

[00:25:18] Speaker 00:
The president can't delegate to the vice president, oh, you handle this appointment.

[00:25:22] Speaker 00:
The Constitution requires the president to do it.

[00:25:25] Speaker 00:
The Constitution requires the head of the department to do it.

[00:25:27] Speaker 00:
And that head of the department was Jeff Sessions, and he did not appoint him.

[00:25:33] Speaker 00:
Now, the government comes back and says, well, Rod Rosenstein was the acting attorney general because of the recusal, but again, that means he can

[00:25:43] Speaker 00:
handle the investigation part, but not the appointment part.

[00:25:47] Speaker 00:
And by the way, Judge Friedrich gave them an alternative way to do this under Section 510, which allows the Attorney General to delegate

[00:25:58] Speaker 00:
authority but they didn't buy that and for good reason because the Attorney General cannot delegate it even if he wanted to his appointment authority and as the opinion of the Office of Legal Counsel says very clearly about this delegation of appointment powers, quote, at a minimum

[00:26:21] Speaker 00:
The framers support the view that a head of the department may use subordinates to carry out appointments so long as the appointment is submitted to the head of the department for approval and made in the name of the head of department upon whom ultimate political accountability rests.

[00:26:40] Speaker 00:
And that's what this whole case is about, political accountability.

[00:26:44] Speaker 00:
Thank you.

[00:26:45] Speaker 04:
All right.

[00:26:45] Speaker 04:
We'll give you a couple of minutes and reply.

[00:26:47] Speaker 04:
Mr. Martin?

[00:27:01] Speaker 02:
May it please the court, good afternoon, James Martin for the amici.

[00:27:06] Speaker 02:
As Mr. Kaminar indicated, the issue that I am going to address has to do with whether there is specific statutory authority permitting the appointment of a private attorney as an officer of the United States in this case.

[00:27:21] Speaker 02:
As the briefing reflects, that divides itself into two issues.

[00:27:26] Speaker 02:
One, are there the statutes or statute that provides that authority?

[00:27:32] Speaker 02:
Our answer to that question is no.

[00:27:34] Speaker 02:
And second, if this court undertakes to answer that question, is it bound by Nixon or sealed case in terms of making the decision?

[00:27:45] Speaker 02:
And our answer to that is no.

[00:27:47] Speaker 02:
the court is not bound by sealed case or by Nixon in terms of its ability to decide that issue.

[00:27:55] Speaker 02:
Excuse me?

[00:27:55] Speaker 01:
Let's just start with sealed case.

[00:27:56] Speaker 01:
Why aren't they bound by sealed case?

[00:27:58] Speaker 02:
So in sealed case, the question

[00:28:02] Speaker 02:
that was focused on by the court for resolution as a result of the briefing by the parties, including Mr. North, had to do with the delegation of authority, not the statutory authority to appoint in the first instance.

[00:28:21] Speaker 02:
If you unpack the briefing in sealed case,

[00:28:24] Speaker 02:
That is revealed by the way Mr. North set the issues up, by the way it was responded to by Mr. Walsh, and finally by the way the government looked at it.

[00:28:38] Speaker 01:
So when you're drawing a decision between delegation and appointment, I take it what you're saying is it's a different case because the person in whom was reposed as authority was already within the department?

[00:28:50] Speaker 02:
Well, that's part of it.

[00:28:51] Speaker 02:
That allowed for the delegation.

[00:28:53] Speaker 02:
But I'm actually a step ahead of that.

[00:28:56] Speaker 02:
The issue that we have before the court in this case which was not addressed with any specificity in sealed case because it was not made an issue is did the authority exist to appoint the special counsel in the first instance.

[00:29:13] Speaker 02:
Now the fact that the special counsel was deemed to be within the department by his own admission allowed for the delegation of authority

[00:29:22] Speaker 02:
But as Judge Friedrich said, the ability to delegate to somebody within the department and the ability to appoint the person in the first instance are distinct issues.

[00:29:33] Speaker 02:
Now turning to that appointment issue, if you unpack sealed case, nobody put in play the question of whether or not there was an authority to appoint Mr. Walsh in the first instance.

[00:29:48] Speaker 02:
Mr. North in his briefing had three principal issues.

[00:29:52] Speaker 02:
He had a statutory conflict issue under 597 of the independent counsel statute.

[00:30:00] Speaker 02:
He had an argument that the special prosecutor was a principal officer.

[00:30:08] Speaker 02:
And finally, he had an argument as to the associates of Mr. Walsh on whether they met the specific requirements of Section 515.

[00:30:17] Speaker 02:
For his part, when Mr. Walsh responded, he disputed the arguments Mr. North made on the merits.

[00:30:24] Speaker 02:
He cited Nixon, but only Nixon for the purpose of allowing the delegation of authority.

[00:30:31] Speaker 02:
And the government, when it weighed in, cited Nixon for the same purpose, that if somebody was within the department, you could delegate the authority.

[00:30:41] Speaker 02:
No one briefed, and this court didn't address expressly,

[00:30:46] Speaker 02:
how it was that sections 509, 510, and 515 provided the statutory authority to appoint Mr. Walsh.

[00:30:58] Speaker 01:
But I thought the way that we constructed the inquiry in Seal Case was that we put to one side the Ethics Act issue.

[00:31:07] Speaker 01:
So by putting that to one side, then it takes out the notion that there could be a difference between coming from without the department and coming from within the department.

[00:31:17] Speaker 01:
Because, right, so then it seems like we put that to one side and then we just talked about the regulations.

[00:31:26] Speaker 01:
And so it seems like the construct in sealed case is in somewhat tension with your notion that sealed case can't be seen to have dealt with the appointment as opposed to a delegation.

[00:31:39] Speaker 02:
Well, again, I'll say two things to that specifically.

[00:31:44] Speaker 02:
First, the briefing.

[00:31:45] Speaker 02:
did not put the issue in terms of appointment B delegation.

[00:31:50] Speaker 02:
Second, the analysis in the opinion doesn't speak in terms of appointment specifically.

[00:31:57] Speaker 02:
The appointment clause comes up only in the principal officer analysis.

[00:32:02] Speaker 02:
And in the front end analysis on the parallel appointment as a private lawyer, the closest you get to it is footnote 30 where there's a citation

[00:32:11] Speaker 02:
to Nixon that they say presupposes the validity of the appointment.

[00:32:16] Speaker 02:
But there's no analysis in the case of the specific issue beyond delegation and authorization.

[00:32:25] Speaker 02:
It's not about appointment.

[00:32:27] Speaker 01:
Can I ask you this question about the implications of your position?

[00:32:29] Speaker 01:
So if the crux of your position is that there was no statutory authority to appoint the special counsel, is that true of every person

[00:32:41] Speaker 01:
in DOJ who's not an employee.

[00:32:43] Speaker 01:
So it has to be, I get that you're not talking about employees.

[00:32:47] Speaker 01:
But for example, suppose there's a judge on the panel who at one point was a Deputy Solicitor General.

[00:32:54] Speaker 01:
And that position, as far as I know, isn't specified by statute to be, it's not specified by statute.

[00:33:02] Speaker 01:
And does your position mean that that appointment

[00:33:09] Speaker 01:
was invalid because there was no Senate confirmation attached to it.

[00:33:12] Speaker 02:
So when we're talking about department heads appointing officers of the United States, which is the category that we have in front of us, our position is you need a specific statute that provides for that authority, and that's the construct of the statutes that deal with the Justice Department in total.

[00:33:34] Speaker 01:
In this situation... So that's the answer to the

[00:33:38] Speaker 01:
The question is that a Deputy Solicitor General, there is no statute that provides for a Deputy Solicitor General.

[00:33:44] Speaker 02:
Right, but if the authority is given to appoint a Deputy Solicitor General to the Attorney General or the Assistant Attorney General, specifically by statute, then it works.

[00:33:58] Speaker 02:
You don't need to have a statute that says Deputy Solicitor General in it.

[00:34:03] Speaker 02:
That's what we're missing in this case, Your Honor.

[00:34:05] Speaker 02:
There is no specific statute.

[00:34:07] Speaker 02:
It's certainly not 515.

[00:34:08] Speaker 01:
It's certainly not 533.

[00:34:11] Speaker 01:
I think I'm missing something.

[00:34:13] Speaker 01:
How is the Deputy Solicitor General, with respect to the argument you just made about statutory authority, differently situated from a special counsel?

[00:34:21] Speaker 02:
Well, at this point, the special counsel is a private lawyer

[00:34:30] Speaker 02:
And the question is, is there a statute that authorizes the appointment of that private lawyer?

[00:34:39] Speaker 02:
And whether he stands on the same footing as a Deputy Attorney General or not, the question still comes back to, now I would say the statutory scheme gives the authority for appointment of Deputy Solicitor General's

[00:34:57] Speaker 02:
despite a specific section because there are grants of appointment authority to people who are not a Deputy Suggestor General who can make that appointment.

[00:35:07] Speaker 02:
There is no grant of authority to the Attorney General, Assistant Attorney General, or Solicitor General that by statute provides the authority to appoint the person in Mr. Mueller's position.

[00:35:23] Speaker 02:
And that is true as a matter of construct

[00:35:27] Speaker 02:
And that issue, I should point out, was not one that this court specifically addressed in sealed case.

[00:35:36] Speaker 02:
And it is the one that's before this court.

[00:35:38] Speaker 02:
This court's own precedents establish that where the factual situation is different and issues aren't addressed or considered, that the court is free to decide the next issue de novo.

[00:35:50] Speaker 02:
There's not a stare decisis effect there.

[00:35:54] Speaker 03:
So in your position, so I'm clear, I mean, the Department of Justice hires private attorneys all the time, and they become Justice Department attorneys.

[00:36:04] Speaker 03:
So is your position that there would be no problem if the attorney general or the deputy attorney just looked within the department and said, oh, we'd like to appoint this person special counsel?

[00:36:18] Speaker 02:
Well, I think I'd have to unpack that in two places.

[00:36:22] Speaker 02:
The first is,

[00:36:23] Speaker 02:
There is authority under the statutory scheme for the retention of employees of the department.

[00:36:31] Speaker 03:
And to hire people who, at the time of their application, are lawyers in private practice.

[00:36:36] Speaker 02:
Yes, and there is specific statutory authority, for example, like Section 543.

[00:36:41] Speaker 02:
So I'm trying to get at the point.

[00:36:44] Speaker 03:
Is this a question of sequencing of the appointment papers?

[00:36:49] Speaker 02:
No, actually it is more fundamental than that.

[00:36:53] Speaker 02:
There is no statute that provides the specific authority for the sequence to start.

[00:37:01] Speaker 03:
I understand your argument.

[00:37:02] Speaker 03:
That's the way you want us to look at it.

[00:37:04] Speaker 03:
But following up on Judge Srinivasan's questions, I'm trying to unpack your argument to say Walt had his appointment and then had a further appointment.

[00:37:19] Speaker 03:
So under that sequence, you're trying to distinguish the current issue.

[00:37:25] Speaker 03:
Isn't that correct?

[00:37:27] Speaker 02:
Yes, that's part of it.

[00:37:31] Speaker 02:
Walsh had an initial appointment under the Ethics in Government Act.

[00:37:37] Speaker 02:
Then he had the second parallel appointment, which was intended to fill the potential for the constitutional problem.

[00:37:46] Speaker 02:
That appointment was not

[00:37:49] Speaker 02:
analyzed in terms of its constitutional propriety in sealed case?

[00:37:56] Speaker 03:
No.

[00:37:57] Speaker 03:
I think we get that point here.

[00:37:58] Speaker 02:
I'm sorry.

[00:37:59] Speaker 03:
No.

[00:38:00] Speaker 02:
All right.

[00:38:00] Speaker 03:
My question is trying to understand, though, what was at issue in sealed case.

[00:38:08] Speaker 03:
The underlying argument

[00:38:13] Speaker 03:
Okay, my apologies.

[00:38:15] Speaker 03:
That Mr. Walsh was working in the Antitrust Division as an attorney for the Department of Justice.

[00:38:22] Speaker 03:
Right.

[00:38:22] Speaker 03:
And it was decided that he would make a great independent counsel.

[00:38:26] Speaker 03:
So we're going to appoint him.

[00:38:28] Speaker 03:
And I'm trying to understand is that the distinction you want us to draw, this sequencing of appointments?

[00:38:36] Speaker 02:
Not, no.

[00:38:39] Speaker 03:
You're saying that the only way there could be a special counsel

[00:38:43] Speaker 03:
is if Congress passes a statute saying the attorney general or his properly authorized deputy may appoint a private attorney who is not currently at the time of appointment an employee of the Department of Justice as special counsel.

[00:39:05] Speaker 02:
Yes.

[00:39:06] Speaker 02:
And to go one step further, in sealed case,

[00:39:09] Speaker 02:
The issue was the delegation of authority to Mr. Walsh.

[00:39:15] Speaker 02:
And that was what was debated under the statutory scheme.

[00:39:19] Speaker 02:
And while the court found that the specific appointment of a special counsel wasn't necessarily authorized or the creation of the office expressly, the statutes did allow the delegation of authority to somebody within the Department of Justice.

[00:39:36] Speaker 02:
And that was what

[00:39:37] Speaker 02:
was deemed to be the fact pattern, and that is what sealed case addressed.

[00:39:43] Speaker 02:
The constitutional compulsion here, of course, comes from Article 2, a bulwark in the Constitution to make sure that the structural safeguards are in place and adhered to.

[00:40:00] Speaker 02:
And what that means is we shouldn't be giving an expansive reading to these sections

[00:40:06] Speaker 02:
in order to find appointment authority that's not in their plain text and structurally conflicts with the way the statutory scheme is set up.

[00:40:18] Speaker 02:
So if this court gets to the issue, which it should, because it has the de novo right to do that, then it shouldn't consider itself bound by Nixon on the one hand, because the Supreme Court wouldn't consider itself bound by Nixon if this case came up in front of them.

[00:40:37] Speaker 02:
They have made it clear that issues that aren't raised in petitions for certiorari, issues that aren't raised in the briefing, and receive only oblique passing reference in an opinion, are not stare decisis.

[00:40:52] Speaker 02:
This court takes the same view.

[00:40:54] Speaker 02:
And if it gets to the statutory question, as our briefing shows, and as Judge Friedrich's opinion emphasizes, there is no statutory authority for this appointment.

[00:41:07] Speaker 02:
There's no dictum.

[00:41:09] Speaker 02:
If an issue's not addressed or considered, I don't think you even get to dict it.

[00:41:13] Speaker 03:
No, no, what I'm getting at is our court is a lower court.

[00:41:19] Speaker 02:
It does appear to dict them by the Supreme Court.

[00:41:24] Speaker 02:
As I said in my simplistic analysis, if the US Supreme Court wouldn't consider itself bound by that

[00:41:32] Speaker 02:
passing reference in Nixon.

[00:41:34] Speaker 03:
I'm aware, but we're not the Supreme Court.

[00:41:35] Speaker 02:
Oh, no, no.

[00:41:36] Speaker 03:
That's what I'm trying to get at.

[00:41:38] Speaker 03:
Yes, OK.

[00:41:38] Speaker 03:
And so if there were dictum in there, we have said that is something that we don't take into account.

[00:41:47] Speaker 02:
Let me come at that point specifically.

[00:41:50] Speaker 02:
That statement in the brief is not part of the court's decision in terms of the merits

[00:42:00] Speaker 02:
of the issues it was looking at.

[00:42:03] Speaker 02:
It was not necessary to the decision on the issues in front of it and therefore it isn't persuasive authority to bind this court on issues that weren't analyzed or considered.

[00:42:16] Speaker 02:
The statement as we know was borrowed from Mr. Jaworski's brief

[00:42:21] Speaker 02:
It wasn't part of the analysis of the justiciable controversy when the court looked at it.

[00:42:27] Speaker 02:
That had to do with the authority that came from the regulation and the tension that was presented with executive privilege.

[00:42:36] Speaker 02:
So compare that, I might add, to the Six Flags case that was cited by the government.

[00:42:46] Speaker 02:
In that case, when the court unpacked the opinion,

[00:42:51] Speaker 02:
The part of the opinion that mattered was necessary to the decision on appeal made by the California court.

[00:42:58] Speaker 02:
That is not true here.

[00:43:11] Speaker 06:
Thank you, Your Honor.

[00:43:13] Speaker 06:
May it please the court, Michael Draben for the United States.

[00:43:16] Speaker 06:
There are three issues before the court today.

[00:43:19] Speaker 06:
The first one is whether, under the Appointments Clause, the special counsel is to be regarded as an inferior officer or as a principal officer who may only be appointed by the president with advice and consent of the Senate.

[00:43:35] Speaker 06:
whether the acting attorney general had statutory authority to make the appointment of the special counsel as an inferior officer, and whether the acting attorney general was actually functioning as the head of the department within the meeting of the Appointments Clause upon the recusal of attorney general sessions.

[00:43:54] Speaker 06:
The first two issues, I believe, are controlled by precedent.

[00:43:59] Speaker 06:
Morrison and sealed case provide the framework and the governing holdings for the Appointments Clause issue in both the court's found officers, who are very similarly situated, not identically situated, to the special counsel, to

[00:44:15] Speaker 06:
qualify as inferior officers, and for reasons that I think have been brought out today and that I can amplify, I think those cases are binding precedent for this Court.

[00:44:25] Speaker 06:
On the statutory question, both Nixon and sealed case considered whether there was authority to appoint a special prosecutor or special counsel

[00:44:36] Speaker 06:
Sealed case specifically relied on 28 USC 515.

[00:44:41] Speaker 06:
Nixon specifically relied on that statute as well as 28 USC 533.

[00:44:47] Speaker 06:
Both statutes, in our view, do provide appointment authority.

[00:44:51] Speaker 06:
And the Supreme Court's analysis in Nixon, which treated those statutes as authority for an integral purpose of its opinion, are binding on this court.

[00:45:01] Speaker 06:
And the last question will turn on statutes that provide upon the recusal of the head of a department in the Department of Justice, the Deputy Attorney General automatically absent an appointment through a source of other authority under the Federal Vacancies Reform Act, becomes the acting Attorney General, assumes all of its functions, and can make the requisite appointments.

[00:45:24] Speaker 01:
So can I just take you to the first issue, which is the constitutional issue on the Appointments Clause?

[00:45:29] Speaker 01:
As you said,

[00:45:31] Speaker 01:
The argument you're making is that it's controlled by Morrison and by sealed case.

[00:45:37] Speaker 01:
Correct.

[00:45:38] Speaker 01:
So with respect to sealed case, part of the opinion in sealed case had to do with the authority of the attorney general to rescind the regulation.

[00:45:44] Speaker 01:
Correct.

[00:45:45] Speaker 01:
And on that, your brief on page 13 says the following.

[00:45:50] Speaker 01:
The regulatory provisions made applicable to the special counsel provide further means of direction and supervision.

[00:45:56] Speaker 01:
And I was struck by the locution made applicable.

[00:45:59] Speaker 01:
So is your understanding that it's not the regulations of their own force that are governing, it's that the appointing order makes the regulations applicable?

[00:46:11] Speaker 06:
That is correct, Judge Srinivasan.

[00:46:13] Speaker 06:
The attorney general or acting attorney general has authority under Section 515 to appoint a special counsel without relying on an internal regulatory framework that was specifically set up for special counsels.

[00:46:26] Speaker 06:
That has been frequently done in the past under multiple presidencies.

[00:46:30] Speaker 06:
special counsels have been brought in to conduct particular investigations without a regulatory framework that is set forth in Part 600.

[00:46:39] Speaker 06:
In this case, the acting attorney general did want to take advantage of the full Part 600 apparatus.

[00:46:45] Speaker 06:
The purpose of the appointment was to provide assurance to the American people that an investigation would be conducted that was sufficiently independent of the ordinary chain of command so that the United States people could have confidence in it.

[00:46:58] Speaker 06:
And the decision was made to issue the appointment order.

[00:47:03] Speaker 06:
The first sections of the Part 600 regime really relate to who shall be selected in the appointment.

[00:47:10] Speaker 06:
They did not need to be incorporated.

[00:47:12] Speaker 06:
The appointment order specifically makes them applicable in order to bring that framework with it.

[00:47:18] Speaker 01:
So then the briefing, including your brief, I think, speaks in terms of authority to rescind the regulations.

[00:47:22] Speaker 06:
Yes.

[00:47:23] Speaker 01:
But am I right?

[00:47:25] Speaker 01:
in thinking that technically, actually here, for example, if the question wouldn't be rescinding the regulations, it would be amending the order.

[00:47:34] Speaker 01:
And it would be amending the part of the order that incorporates the regulation.

[00:47:37] Speaker 06:
I think it could be either judgment about some because... Then let me ask you this way.

[00:47:42] Speaker 01:
Is the power to amend the order enough?

[00:47:45] Speaker 01:
Yes.

[00:47:45] Speaker 01:
So that you don't have to get into rescinding the regulation?

[00:47:47] Speaker 01:
Yes.

[00:47:47] Speaker 01:
The power to amend the order would be enough.

[00:47:49] Speaker 01:
And if that's true, then is it also the case then

[00:47:52] Speaker 01:
that if one were to posit that there was a question about the authority to rescind the regulations, that still wouldn't matter because as long as the acting Attorney General has the power to amend the order, then the order could be amended to eliminate the good cause requirement part of the regulation that's been incorporated such that that's then gone and where

[00:48:16] Speaker 01:
in a regime in which the good cause limitation wouldn't exist.

[00:48:19] Speaker 06:
That's exactly right and it puts it on all fours with sealed case because the reasoning in sealed case was not that the particular powers that the independent counsel had rendered him an inferior officer, it was that the attorney general retained the power at any time

[00:48:33] Speaker 06:
to rescind the regulation under which the Special Counsel's Office, the Independent Counsel's Office was created and thereby render the Special Counsel just like any other officer in the Department of Justice subject to the Attorney General's supervision.

[00:48:47] Speaker 06:
I would add one footnote on your Honor's first observation, which is

[00:48:51] Speaker 06:
the root of amending the order would take the court out of the business of having to decide whether the acting Attorney General could rescind the regulation.

[00:49:00] Speaker 06:
He could because as Deputy Attorney General under 28 CFR 0.15, he has already all the authorities of the Attorney General

[00:49:11] Speaker 06:
unless there is a statute that specifically prescribes that only the Attorney General can exercise that power.

[00:49:18] Speaker 06:
And so the Deputy Attorney General in that capacity could across the board rescind the special counsel regulation if he determined that it was no longer in the interest of the department to have that kind of attorney within the department

[00:49:30] Speaker 01:
Or, alternatively, as your Honor suggests, the order could be amended in which case... So just on the rescission part of it, so let's take it outside the construct of a special counsel appointment at all.

[00:49:43] Speaker 01:
So the regulation exists.

[00:49:45] Speaker 01:
If the Deputy Attorney General... I see.

[00:49:49] Speaker 01:
It's only in the capacity of the Acting Attorney General.

[00:49:52] Speaker 06:
In the capacity of Acting Attorney General, he amends the order.

[00:49:54] Speaker 06:
In the capacity of Deputy Attorney General, he has charge of governance of the department unless some statute says only the Attorney General can do it.

[00:50:03] Speaker 06:
And there are a handful of statutes that designate particular officers within the Department of Justice to do things.

[00:50:09] Speaker 06:
like the Wiretap Act, but other than that, the Attorney General has the power to flow power down to others and has done that with the deputy.

[00:50:18] Speaker 01:
I guess my question was going to be if the Deputy Attorney General in the capacity of acting Attorney General rescinds the regulation.

[00:50:24] Speaker 06:
Yes.

[00:50:24] Speaker 01:
But then the Attorney General in the capacity as Attorney General

[00:50:29] Speaker 01:
can countermand the rescission of the regulation?

[00:50:32] Speaker 01:
In theory, that's right.

[00:50:33] Speaker 01:
OK.

[00:50:34] Speaker 06:
That is correct.

[00:50:34] Speaker 06:
That's the way that it works.

[00:50:36] Speaker 06:
There will be some interesting questions raised about whether an attorney general who is recused from a particular investigation could take action with respect to a regulation that would have specific and unique application to a special counsel appointed under it,

[00:50:51] Speaker 06:
Fortunately, we don't have to get into any of those issues because the deputy retains his own power and the order could be amended by the acting attorney general under his own authority, from which the attorney general at the time was recused and therefore could not have countermanded it.

[00:51:10] Speaker 06:
And I think that those two things mean that under this court's decision and sealed case,

[00:51:16] Speaker 06:
The controlling holding is that as long as the Attorney General can get back the power that he has delegated, the person to whom he has delegated it remains an inferior officer.

[00:51:29] Speaker 06:
Sealed case cannot be distinguished, as my friends on the other side suggest, by saying that Lawrence Walsh had already been an appointee of the Department of Justice.

[00:51:39] Speaker 06:
The entire point of giving a backup parallel regulatory appointment

[00:51:45] Speaker 06:
to Walsh was to take out of the question the constitutionality of the Ethics in Government Act.

[00:51:51] Speaker 06:
The only reason that my opponents can say that Walsh was in the Department of Justice is that he was appointed under the Ethics in Government Act.

[00:52:00] Speaker 06:
But this court determined we do not have to look at that.

[00:52:03] Speaker 06:
We don't have to decide whether he was properly in the Department of Justice under a constitutionally valid appointment because we're going to look solely to the regulation.

[00:52:11] Speaker 01:
So that's not a statutory question just before

[00:52:13] Speaker 01:
We go to that.

[00:52:15] Speaker 01:
Can I just ask you a couple of detailed questions on the constitutional question, and specifically about the way that supervision is exercised.

[00:52:21] Speaker 01:
So there's the provision that talks about the attorney general finding that something the special counsel wants to do is so inappropriate or unwarranted under established department practices that it should not be pursued.

[00:52:34] Speaker 00:
Correct.

[00:52:35] Speaker 01:
And that's part of the supervisory power that you highlight in your briefing.

[00:52:40] Speaker 01:
Correct.

[00:52:41] Speaker 01:
Do you understand that to mean

[00:52:43] Speaker 01:
that if the attorney general makes that assessment, then that the special counsel can't take the step?

[00:52:50] Speaker 01:
We do.

[00:52:51] Speaker 06:
And I don't think that my opponents have contested that.

[00:52:53] Speaker 06:
That is the way that the Department of Justice interprets it, to unpack the sort of regulatory background, because I think that the court may have been given a slightly

[00:53:03] Speaker 06:
different impression than the way things actually operate under the regulations.

[00:53:08] Speaker 06:
The special counsel has a regular reporting obligation to the acting attorney general in order to maintain the acting attorney general's ultimate accountability for the investigation.

[00:53:18] Speaker 06:
That's one of the twin purposes of the regulation.

[00:53:21] Speaker 06:
Ultimate accountability in the attorney general, day-to-day independence of the special counsel.

[00:53:26] Speaker 06:
We are therefore required to submit reports to the Acting Attorney General in accordance with the Department of Justice's urgent report guidelines, which, without going into all their detail, ensure that major events and investigations are reported up the chain of command so that supervisory officials in the Department are aware of them.

[00:53:47] Speaker 06:
The regulations also specifically provide that the acting attorney general can ask the special counsel for an explanation of any investigatory step.

[00:53:57] Speaker 06:
So he's aware of what we're doing and he can ask for an explanation of it.

[00:54:01] Speaker 06:
It is not the case that the special counsel is off wandering in a free-floating environment and can decide on his own when to report.

[00:54:09] Speaker 06:
There's a reporting obligation that's triggered by the urgent report requirement and by a request by the acting attorney general.

[00:54:16] Speaker 06:
Upon that process, if it occurs, after giving great deference to the views of the special counsel, who is after all intended to be independent on a day-to-day basis, can conclude that an action is so inappropriate or unwarranted under established departmental practice so that it shall not be pursued.

[00:54:36] Speaker 06:
Should not be pursued is the language of the regulation we read it as saying, shall not be pursued.

[00:54:43] Speaker 06:
And the idea there is that this officer should have sufficient independence to exercise discretion within the zone of what the Department of Justice ordinarily does.

[00:54:56] Speaker 06:
But if the acting Attorney General concludes in words that afford him a fair amount of discretion,

[00:55:01] Speaker 06:
that an action is so inappropriate, to a degree of inappropriateness, or unwarranted, that it shall not be pursued, he can step in and say otherwise.

[00:55:12] Speaker 01:
So it's not that then it just triggers a reporting obligation on the part of the Attorney General to report it to the Senate.

[00:55:17] Speaker 01:
That's right.

[00:55:18] Speaker 01:
It's that the Attorney General can actually prevent the action from happening.

[00:55:20] Speaker 06:
That is our understanding of the regulations.

[00:55:23] Speaker 06:
The preamble to the regulations makes clear that that is part of the arsenal of powers that the acting attorney general has in order to preserve his accountability.

[00:55:34] Speaker 06:
And given that it is the Department of Justice's interpretation and we are a subordinate office within the Department of Justice, we accept that reading of the regulations.

[00:55:44] Speaker 06:
And it fits with their purpose because these regulations were intended to be a reaction to the independent council regime in which independent councils were deemed to have too much authority to act outside the scope of authority of the executive branch.

[00:56:00] Speaker 06:
This regulation brought everything in-house.

[00:56:03] Speaker 06:
and it was designed to strike a balance in an area where it is very difficult to strike a balance.

[00:56:08] Speaker 06:
Give an officer independence, but make sure that the traditional executive branch line of accountability is still maintained.

[00:56:15] Speaker 01:
So one more question, which is on the supervisory role, which is that let's assume away the

[00:56:24] Speaker 01:
possible remedy that the acting Attorney General can amend the order.

[00:56:29] Speaker 01:
And let's assume that the acting Attorney General also can't rescind the regulation.

[00:56:33] Speaker 01:
Let's just assume that.

[00:56:35] Speaker 01:
And then we're only talking about how the good cause regulation plays out.

[00:56:39] Speaker 01:
And if we're talking about that, your brief says that the grounds, the good cause provision includes

[00:56:46] Speaker 01:
things such as the failure to follow an order from the Attorney General that is lawful under the regulation.

[00:56:50] Speaker 01:
That's right.

[00:56:51] Speaker 01:
And when you say that is lawful under the regulation, as opposed to any order of the Attorney General, it has to be an order that's lawful under the regulation.

[00:56:57] Speaker 01:
Because otherwise, the independence part of this would drop out.

[00:57:01] Speaker 01:
Exactly right.

[00:57:02] Speaker 01:
Then the lawful under the regulation, do you mean a regulation that's consistent with the degree of independence that's envisioned by the regulation?

[00:57:10] Speaker 01:
Or is there something else that you have in mind?

[00:57:13] Speaker 06:
Well, I mean, any potential order could, in theory, and this is totally hypothetical and well outside the bounds of anything that happened, but an attorney general could give an order that's flatly unlawful, and that would not provide good cause.

[00:57:27] Speaker 06:
Oh, yeah, on some other... Yes, on some other grounds.

[00:57:29] Speaker 06:
Within the scope of the regulation, I think the one that everyone is talking about is the one that we have just been talking about, whether a action is so inappropriate or unwarranted under established departmental practice.

[00:57:41] Speaker 06:
If the acting Attorney General said, look, this is well within Department of Justice established practice, prosecutors do this all the time, they seek immunity, they make plea agreements, they bring indictments, but in my personal view, I would just exercise the discretion differently.

[00:57:59] Speaker 06:
You're well within the bounds of what a prosecutor could do, but I would do it differently.

[00:58:02] Speaker 06:
That is not what's envisioned by this regulation.

[00:58:06] Speaker 06:
It's viewed as something that reflects an effort to provide some independence.

[00:58:12] Speaker 06:
But it doesn't exist in an island.

[00:58:14] Speaker 06:
These regulations start with the acting attorney general deciding to appoint somebody who has a reputation for knowledge, familiarity, and integrity

[00:58:24] Speaker 06:
with the Department of Justice regulations.

[00:58:27] Speaker 06:
So from the start, you're picking someone who can be expected to fulfill that role in a responsible manner.

[00:58:33] Speaker 06:
Then the special counsel's jurisdiction is defined by the acting attorney general, contrary to what

[00:58:40] Speaker 06:
My friend said, our jurisdiction has never been expanded.

[00:58:44] Speaker 06:
It has been explicated in orders that have been taken cognizance of by courts, by the acting attorney general, for what it's worth for the court.

[00:58:55] Speaker 06:
Acting Attorney General Rod Rosenstein testified before Congress that he is aware of what the special counsel is doing.

[00:59:01] Speaker 06:
He's fully exercising his role in holding the special counsel.

[00:59:04] Speaker 06:
accountable for operating within the zone of his activities, and that's what he's doing.

[00:59:09] Speaker 06:
And if the special counsel were straying outside of it, he would take action.

[00:59:13] Speaker 06:
So there's jurisdictional limitations on what we can do.

[00:59:16] Speaker 06:
Furthermore, the special counsel is required to comply with the practices, policies, procedures of the Department of Justice.

[00:59:23] Speaker 06:
We have to get approval requirements, just like U.S.

[00:59:26] Speaker 06:
attorneys do.

[00:59:27] Speaker 06:
If we want to subpoena a member of the media, or if we want to immunize a witness,

[00:59:31] Speaker 06:
We're encouraged, if we're not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice.

[00:59:39] Speaker 06:
If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States.

[00:59:45] Speaker 06:
So we're operating within that sort of a supervisory framework.

[00:59:48] Speaker 06:
And I think when you put all of those things together, the degree of deference that's accorded under the regulations is not in excess of what the Supreme Court in Edmond said

[00:59:57] Speaker 06:
is an acceptable degree of restraint of review of a higher court of a lower court, and still does not divest the lower court of being an inferior officer, same is true here.

[01:00:12] Speaker 06:
And in comparison to Morrison and sealed case,

[01:00:16] Speaker 06:
We have a much tighter regulatory nexus in the Independent Council Act.

[01:00:21] Speaker 06:
The Independent Council is operating outside the Department of Justice, was not doing day-to-day reporting, and was not subject to being countermanded even under the standard in the regulations.

[01:00:31] Speaker 06:
and the sealed case regulations were intended to mirror the Independent Council Act.

[01:00:36] Speaker 06:
So I think whether you come at this from the vantage point of precedent or first principles, either way the special counsel is not operating on the level that would convert him into a principal officer.

[01:00:49] Speaker 06:
Now, on the statutory question, again, we think that this Court should take heed of the precedents that have previously considered the authority of the Attorney General to appoint attorneys.

[01:01:04] Speaker 06:
I'll start with a brief

[01:01:08] Speaker 06:
review of Nixon and sealed case, and then I want to turn to the practicalities and the actual statutes that are at issue briefly if the court wishes.

[01:01:18] Speaker 06:
Nixon, I think, is contrary to what Miller and his amici have said, integrally bound up with a conclusion that the special prosecutor in that case

[01:01:29] Speaker 06:
was properly appointed by the Attorney General.

[01:01:32] Speaker 06:
The issue in that case was whether a dispute was justiciable when the President of the United States asserted executive privilege over particular tapes and a special prosecutor was proceeding in court in the sovereign interest of the United States to obtain evidence for a pending criminal case.

[01:01:49] Speaker 06:
And the President's position was, I'm President of the United States,

[01:01:52] Speaker 06:
I invested with all executive authority.

[01:01:55] Speaker 06:
I decide what evidence is to be used in a criminal case.

[01:01:58] Speaker 06:
This is just a dispute between me and someone who's carrying out on a delegated basis a portion of my authority.

[01:02:05] Speaker 06:
It is therefore not justiciable.

[01:02:07] Speaker 06:
And the Supreme Court's reasoning was,

[01:02:09] Speaker 06:
Well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions.

[01:02:18] Speaker 06:
That authority is vested in the Attorney General, who is the representative of the United States as sovereign in court.

[01:02:26] Speaker 06:
And he, exercising the powers under 28 U.S.C.

[01:02:30] Speaker 06:
515, 533,

[01:02:31] Speaker 06:
and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down.

[01:02:38] Speaker 06:
But acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers.

[01:02:46] Speaker 06:
And those powers enabled him to go into court and to meet head-to-head in an adversary proceeding.

[01:02:52] Speaker 06:
The President's claim as President

[01:02:54] Speaker 06:
that particular tapes were covered by executive privilege as against the sovereign's claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case.

[01:03:06] Speaker 06:
So I don't think that the court's analysis permits

[01:03:10] Speaker 06:
a lower court or the Supreme Court to conclude that this was not an important feature of the court's case.

[01:03:16] Speaker 06:
It was.

[01:03:17] Speaker 06:
Now, it's true that it was uncontested, but I think that that only reflects the fact that a contextual reading of Section 515 and the express language of Section 533 makes quite clear that there is the authority of the attorney general to appoint attorneys to assist him in carrying out his work.

[01:03:35] Speaker 06:
To use Judge Srinivasan's example, there is no specific statute that identifies the authority to appoint deputy solicitors general, deputies to the acting attorneys general, deputies to people in the criminal division, and yet those hires are made all the time.

[01:03:51] Speaker 06:
Some of them may qualify as employees by virtue of the duties that are vested in them, and there are other statutory authorities for employees.

[01:03:59] Speaker 06:
But for officers of the United States, these are the authorities that have been relied on for decades to appoint not only special counsels, but regular lawyers within the Department of Justice.

[01:04:13] Speaker 06:
And we didn't get into in this argument the specific language of Section 515 and of 533 and how I think that it does provide controlling language that authorizes the appointments

[01:04:29] Speaker 06:
Let me just say one thing about that, and if the court has questions, I will go into it in more detail.

[01:04:35] Speaker 06:
The text of Section 515A and B is a fusion of two statutes that come from different historical periods.

[01:04:44] Speaker 06:
The language in 515B emanates from the original Department of Justice Creation Act in 1870.

[01:04:51] Speaker 06:
And the purpose of that act was to avoid the problem of attorneys being hired as private attorneys for special purpose cases and earning exorbitant salaries by agencies all over the government.

[01:05:04] Speaker 06:
And what Congress decided to do was to create a new agency, the Department of Justice, transfer all legal functions into it, say to all the other agencies, you can't hire anybody on your own.

[01:05:14] Speaker 06:
say to the Attorney General, you can hire somebody on your own only if no one in the Department of Justice can actually do the job.

[01:05:22] Speaker 06:
And then in section 17 of the Act, Congress went on to say every attorney and counselor who shall be specially retained under the authority of the Department of Justice to assist in the trial of any case will then take the oath of office, receive a commission, and have his salary set.

[01:05:39] Speaker 06:
So that was the 1870 enactment.

[01:05:42] Speaker 06:
It presupposes the authority to appoint these special councils.

[01:05:46] Speaker 06:
Everybody recognized that.

[01:05:48] Speaker 06:
The Supreme Court in two cases in the late 19th century recognized it, not as holdings, but as just observations, and that's the way things work.

[01:05:57] Speaker 06:
And then in 1906, Congress responded to a district court decision, United States versus Rosenthal, in the Southern District of New York,

[01:06:04] Speaker 06:
that said, well, we get that the attorney general can appoint special counsels to handle trials, but those lawyers can't go in and do grand jury proceedings.

[01:06:13] Speaker 06:
And Congress reacted by saying, this is going to greatly hobble the authority of the attorney general to get the job done, so we're going to give him the authority to hire special attorneys to go in and appear in both grand juries and trials.

[01:06:29] Speaker 06:
and that's the language that is now in 515A.

[01:06:33] Speaker 06:
In the Senate report on that bill, the Senate specifically said, and this is language that's referred to in a bill on JA 75, the court doesn't quote it, but it does cite the Senate report, Senate recognized that it's often desirable that the attorney general have the authority to appoint his own lawyers, and sometimes there'll be assistance to the district attorneys

[01:06:57] Speaker 06:
And in other times where it's impracticable, and now I'm quoting, he needs the authority to appoint a special assistant to the attorney general or special counsel to act independently of the United States attorney, particularly in criminal matters.

[01:07:12] Speaker 06:
I should also add that Section 17, the one that I referred to earlier,

[01:07:16] Speaker 06:
in the 1870 Act would have had no effect if it required a law outside of Section 17 itself.

[01:07:22] Speaker 06:
There was no Department of Justice before 1870.

[01:07:25] Speaker 06:
There was no law that gave the Attorney General authority to hire assistants to him as opposed to the district's attorneys.

[01:07:32] Speaker 06:
So to read that language as not providing retention authority would essentially mean that it is operating in a meaningless way.

[01:07:40] Speaker 06:
Congress enacted a statute, but there was no way to actually implement it to achieve its purposes.

[01:07:45] Speaker 06:
And the court may want to ask the question, why are we going to be on the text at all?

[01:07:52] Speaker 06:
And I think the answer to that is well stated in a case by this court called Loving v. IRS, 742 F3rd, 1013, 2014 decision, in which the court was confronted with an IRS attempt to interpret a statute that had been enacted originally in 1884

[01:08:13] Speaker 06:
And it allowed the Department of the Treasury to regulate people who practiced before it in tax matters.

[01:08:20] Speaker 06:
And the IRS said, well, we're going to expand that to all tax advisors all over the country, even if they don't actually appear in front of the IRS.

[01:08:27] Speaker 06:
And the court had to decide, what did this statute mean?

[01:08:31] Speaker 06:
And in the course of doing that, it looked at the text.

[01:08:35] Speaker 06:
It looked at the history going back to 1884 and what it was originally employed for.

[01:08:40] Speaker 06:
And it looked at the broader statutory framework

[01:08:43] Speaker 06:
Here, if the broader statutory framework is examined, it would make little sense for Congress to have a Department of Justice with no authority for the head of the department to actually appoint people, which would be the result if my brother's position is accepted.

[01:09:01] Speaker 06:
And it would make little sense to have these two provisions, which on their face contemplate appointment authority,

[01:09:08] Speaker 06:
Section 515 talks about every attorney specially retained shall take a commission.

[01:09:13] Speaker 06:
It would be a little odd to have that provision if nobody could be specially retained.

[01:09:17] Speaker 06:
And Section 515A talks about any attorney specially appointed by the Attorney General under law, which again would be a very odd thing if there were no law anywhere that allowed that kind of appointment.

[01:09:29] Speaker 01:
I mean, I assume you'd be taking the same position even if you didn't have 515 and 533 just based on 509 and 510.

[01:09:34] Speaker 06:
I don't know that I would, Judge Srinivasan, because 509 and 510 are statutes that talk about all functions of every other official in the Department of Justice being vested in the Attorney General.

[01:09:46] Speaker 06:
So all things that anybody else can do, he can do.

[01:09:48] Speaker 06:
And anything that he can do, he can delegate down to somebody else.

[01:09:52] Speaker 06:
But we're talking here about the specific authority to make an appointment by the head of a department for which you do need a statute that confers appointment authority.

[01:10:02] Speaker 06:
I don't.

[01:10:02] Speaker 01:
But a 515.

[01:10:04] Speaker 01:
operating as an assumption that the authority exists as opposed to creating the authority to begin with, and that authority has to come from someone else.

[01:10:10] Speaker 06:
Well, there are other officers in the Department of Justice that are created by statute, so it's a good argument, but I think I would have to point out that there are other statutory

[01:10:19] Speaker 06:
officers that would mean that you wouldn't necessarily have to imply it.

[01:10:23] Speaker 06:
I think you would by logic.

[01:10:24] Speaker 06:
I mean, if there's any final point that I would make on this, it's that this is a case where there is more than a volume of history.

[01:10:32] Speaker 06:
There are multiple volumes of history.

[01:10:34] Speaker 06:
Congress regularly appropriates money for the hiring of special counsels in bills, some of which we've cited in our brief.

[01:10:42] Speaker 06:
Some of the most notorious scandals in our nation's history have been handled by special attorneys who were appointed under these very authorities, Watergate being perhaps the most famous.

[01:10:54] Speaker 06:
Congress has returned to this statute on occasion.

[01:10:57] Speaker 06:
In 1930, it allowed another title to be bestowed by the Attorney General so that not everybody would have as lofty a title as Special Assistant to the Attorney General.

[01:11:07] Speaker 06:
And in 1948, it simplified its language.

[01:11:10] Speaker 06:
The reenactment canon, if not directly applicable, certainly seems relevant in this context.

[01:11:16] Speaker 06:
The Office of Legal Counsel has recognized hiring authority.

[01:11:20] Speaker 06:
You basically have all three branches of government.

[01:11:22] Speaker 06:
and a lot of institutional activity that surrounds the assumption that these kinds of appointments can be made.

[01:11:28] Speaker 06:
And I think at this late date, whether you start with an extended sealed case or you look at the text and the history, whether you look at the way in which it's been operationalized over history, congressional endorsement and ratification, I think they all take you to the same place.

[01:11:43] Speaker 06:
So I will address if the court wishes, but only if the court wishes, the final issue.

[01:11:50] Speaker ?:
Thank you.

[01:11:50] Speaker 06:
Does the court wish to hear anything about that?

[01:11:54] Speaker 06:
I don't think so.

[01:11:55] Speaker 06:
Okay.

[01:11:55] Speaker 06:
Then I will rest on our briefs on that issue.

[01:11:58] Speaker 06:
Thank you very much.

[01:12:02] Speaker 04:
Why don't you take two minutes?

[01:12:07] Speaker 00:
Just briefly, Your Honor.

[01:12:09] Speaker 00:
With respect to the principal officer issue, my friend relies, as you said, basically on Ingray's seal.

[01:12:20] Speaker 00:
Hmm.

[01:12:21] Speaker 00:
the Nixon case, and it seems to me that you forgot to mention anything about this court's opinion in intercollegiate and Edmund, which is subsequent authority, and therefore again I go back to my original argument that there has to be substantial supervision and oversight.

[01:12:42] Speaker 00:
Now what does my friend say about what actually goes on?

[01:12:47] Speaker 00:
He said, and I believe I'm quoting, there's regular

[01:12:50] Speaker 00:
reporting obligations.

[01:12:53] Speaker 00:
Oh, really?

[01:12:54] Speaker 00:
Let's look at session 600.6.

[01:12:59] Speaker 00:
which says, except as provided in this part, the special counsel shall determine whether and to what extent to inform or consult with the attorney general or others within the department about the conduct of his or her duties and responsibilities.

[01:13:17] Speaker 00:
So the general rule is the special counsel doesn't have to talk at all to the acting attorney general.

[01:13:23] Speaker 00:
And if the attorney wants to ask him about something, he can ask, but he's not obligated to tell him.

[01:13:28] Speaker 00:
The only time that there is a requirement is with respect to what he said about urgent reports.

[01:13:37] Speaker 00:
And it says here under the section here in 600.8B,

[01:13:46] Speaker 00:
The special counsel shall notify the attorney general of events in the course of his or her investigation in conformity with the department guidelines with respect to urgent reports.

[01:13:58] Speaker 00:
Okay, so there you have it.

[01:14:00] Speaker 00:
There's no day-to-day supervision.

[01:14:01] Speaker 00:
There's no regular consultation.

[01:14:04] Speaker 00:
They may try to do that, but that's not what they're bound by the regulations.

[01:14:07] Speaker 00:
The special counsel has the pure discretion to do it, number one.

[01:14:10] Speaker 00:
Number two, even if he sends an urgent report,

[01:14:14] Speaker 00:
Because of the difference that's given, all that isn't informational.

[01:14:19] Speaker 00:
It's not really supervision and control.

[01:14:22] Speaker 00:
And it seems to me that if you have all this authority to appoint all these other special counsels, again, you go back to what the court said subsequent to this, when those cases weren't really litigated, you need to have specific authority authorizing the appointment.

[01:14:41] Speaker 00:
And my amicus will probably pick that up.

[01:14:43] Speaker 00:
because we're talking about the Appointments Clause in Article 2.

[01:14:47] Speaker 00:
You can't have, looking at a statute, it's got past participles and hold it again up sideways and see whether we can divine some kind of an authority here.

[01:14:56] Speaker 00:
You have to have that, it was clear in Edmund there was, and you have a simple statute that says the Attorney General shall appoint Assistant United States Attorneys and B, he can be removed at will by the Attorney General.

[01:15:11] Speaker 00:
That kind of language, if you're having that for an assistant US attorney, surely this court should demand that for respect to hiring someone who is considered to having the most powerful, significant authority in the country.

[01:15:25] Speaker 00:
And finally, on the inferior officer, again, there was no real argument there, countering what I've said, that it has to be appointed by the head of the department.

[01:15:33] Speaker 00:
The head of the department was Jeff Sessions.

[01:15:37] Speaker 00:
authority under 508A only goes to with respect to the investigation that was recused from, not from the actual appointing authority by the head of the department.

[01:15:48] Speaker 00:
And again, the OLC opinion, which is from the Justice, he had no answer to that.

[01:15:53] Speaker 04:
Thank you.

[01:16:01] Speaker 02:
Thank you.

[01:16:01] Speaker 02:
Thank you, Your Honors.

[01:16:03] Speaker 02:
Let's not make Nixon and Seald case into something that they're not.

[01:16:08] Speaker 02:
In Nixon, this issue of statutory authorization was not part of the issues on certiorari.

[01:16:15] Speaker 02:
It was not part of the briefing.

[01:16:17] Speaker 02:
The borrowed reference with the statutes in it was not analyzed by the court.

[01:16:23] Speaker 02:
It wasn't part of the description of the justiciable controversy.

[01:16:27] Speaker 02:
And no language in the opinion would lead anyone to the conclusion

[01:16:32] Speaker 02:
that was essential to resolving what the controversy was.

[01:16:36] Speaker 02:
The president's justiciability challenge, which was briefed and argued, was whether the court lacked jurisdiction to issue a subpoena because the matter was an intra-branch dispute between subordinate and superior officer of the executive branch.

[01:16:51] Speaker 02:
That dispute became concrete

[01:16:54] Speaker 02:
through the regulation.

[01:16:56] Speaker 02:
And once the regulation was not subject to withdrawal and the special counsel was not subject to removal by virtue of the regulation, the concreteness existed.

[01:17:08] Speaker 01:
Here's what Nixon says at page 694 of the relevant passage.

[01:17:12] Speaker 01:
Under the authority of Article 2, Congress is vested in the attorney general the power to conduct criminal litigation in the United States.

[01:17:18] Speaker 01:
It is also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties, citing 509, 510,

[01:17:24] Speaker 01:
15 and 533, the exact statutes that are in here.

[01:17:29] Speaker 01:
Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.

[01:17:37] Speaker 01:
And then I feel like what you want us to do is quote that provision and then afterwards say we disagree.

[01:17:43] Speaker 01:
And that doesn't seem like something that we'd be in a position to do.

[01:17:47] Speaker 01:
Even if you're right that if you look at the way that things were raised, the particular arguments that were made,

[01:17:55] Speaker 01:
The court just said that.

[01:17:59] Speaker 02:
It said it in passing without analysis.

[01:18:02] Speaker 02:
There's no drop down there to validate any of what's in that passage, which we knew came from Mr. Jaworski's brief.

[01:18:09] Speaker 02:
It wasn't disputed by anyone.

[01:18:11] Speaker 02:
That's exactly the way the court would phrase something that wasn't a disputed issue.

[01:18:16] Speaker 02:
When it did pivot to what was disputed and had been briefed and argued, there is no issue about the appointment authority.

[01:18:24] Speaker 01:
So it's a dispute.

[01:18:25] Speaker 01:
It's not that it had no role in the decision because it had a role in the justiciability issue that the court resolved.

[01:18:32] Speaker 01:
You're really promising it on the fact that there was no dispute.

[01:18:36] Speaker 02:
It was assumed.

[01:18:37] Speaker 02:
It wasn't necessary to resolve the justiciability issue that the court framed.

[01:18:43] Speaker 02:
There was no debate by anybody.

[01:18:46] Speaker 02:
that the special counsel had the right to be there.

[01:18:50] Speaker 02:
The issue was after that.

[01:18:52] Speaker 02:
So that's not a holding.

[01:18:55] Speaker 02:
It's not necessary.

[01:18:56] Speaker 02:
It's not analysis.

[01:18:57] Speaker 02:
And the Supreme Court, as I said, would not treat it that way.

[01:19:00] Speaker 02:
In Seale's case, as I said, the Appointments Clause issue is not analyzed when the court gets down to resolving the front end of the controversy, which is the delegation.

[01:19:14] Speaker 02:
The courts looked at whether the cited statutes authorized Mr. Walsh to carry out his prosecutorial and investigative duties.

[01:19:23] Speaker 02:
And it found, while those statutes did not expressly authorize the Attorney General to create the Office of Independent Counsel, they could be read to authorize the delegation of authority.

[01:19:36] Speaker 02:
That was the issue in dispute.

[01:19:40] Speaker 02:
A sealed case does not take a step back.

[01:19:43] Speaker 02:
and analyze 509, 515, or 510 to say where the appointment authority came from or whether it was valid.

[01:19:52] Speaker 02:
And of course, we know if the court did that, it couldn't get to the end result that the appointment, without him being within the Department of Justice, would have been valid.

[01:20:05] Speaker 02:
We cannot take the language of 515

[01:20:10] Speaker 02:
and apply some anecdotal historical story to change what it plainly provides.

[01:20:16] Speaker 02:
The Supreme Court's opinion in Lexicon tells us history is no antidote for what a statute doesn't say, no matter what the historical practice was.

[01:20:26] Speaker 02:
And two, the Supreme Court has told us, and many courts agree, that historical atextual analysis, again, can't affect the plain text.

[01:20:36] Speaker 02:
The plain text of 515A and 515B does not provide the appointment authority for reasons that we've suggested in our brief

[01:20:46] Speaker 02:
Judge Friedrich found by its tense, by its language, by its construct, and by its context.

[01:20:55] Speaker 02:
Congress knows how to say a point in present tense, an officer in present tense when it wants to, and the statutory scheme accommodates that for all the appointments that have been talked about here today, but not this one.

[01:21:12] Speaker 02:
And as far as the historical

[01:21:14] Speaker 02:
treatment, it's bad history.

[01:21:16] Speaker 02:
The original statute... Let me start you there.

[01:21:20] Speaker 04:
We've got enough of history.

[01:21:21] Speaker 04:
Thank you.

[01:21:24] Speaker 04:
We'll take a short break.