DoJ Appointment, Independence, and Removal


DoJ Special Counsel rules

Creation of DoJ Special Counsel rules in 1999.

  • promulgated as regulations -- online
  • U.S. v. Nixon: legally binding while in effect
  • Internal -- no notice-and-comment -- can be repealed

Operational supervision and independence; reporting to Congress

  • AG must report to Congress reasons for appointment, removal; any denial to SC of major actions, such as an indictment; at completion, any violations of DoJ procedures
  • SC consults with AG; reports major developments, budget
    • Folllows all U.S. Attorney rules -- the Justice Manual -- online.
    • e.g. “Disclosure of Foreign Influence Operations” (Title 9-90.730)
    • “Urgent Reports” is the subject of 1-13.100 and the following sections
  • Upon completion, SC reports to AG.

Removal -- limited to reasons of “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies " (see section 600.7(d) in DoJ Special Counsel regs)


The Whitaker appointment

The Appointments Clause

[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Inferior Officers

What kinds of officials can be appointed by a sub-presidential official (and protected from direct presidential firing)?

  • Morrison v. Olson (1988): Independent Counsel was "inferior officer" because
    • removable (albeit only for cause) by a presumably superior officer
    • empowered only with restricted duties
    • given extremely limited jurisdiction (a single case)
    • temporary, followed by automatic termination
  • Edmond v. U.S. (1997):
    • "Inferior" if work is directed and supervised by others, and ultimately by some Senate-confirmed officer.
    • Could an officer be removable by another, but her decisions not directly revisble by any superior? (example: the Special Prosecutor?) Is such an officer inferior or principal?
  • Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)
    • An oversight board under the independent Securities and Exchange Commission, itself protected from removal by the commissioners except for cause.
    • Court ruled that this two-layer protection from presidential removal contradicts the Vesting Clause, and eliminated their protection against firing by SEC.
    • Without that, the Board members become inferior officers (supervised by the SEC).

Vacancies Reform Act

Federal Vacancies Reform Act of 1998 -- online.

  • In case of disability or resignation of a Senate-confirmed officer, “first assistant” becomes "acting" for up to 210 days.
  • Pres can instead designate a different successor, either someone confirmed by the Senate to another office, or someone employed in the same agency for at least 90 days of the past 365, at or above the GS-15 level.
  • Those are the exclusive means for temporary replacement UNLESS some other statutory provision expressly authorizes some different procedure to designate an acting officer.
    • Would such a statute override or supplement the VRA?
    • Does the earlier AG Succession Act’s implied exclusivity survive the VRA?

Attorney General Succession Act

US Code Chapter 28 sec. 508 (created 1966) -- online. AG is to be succeeded, in order, by

  • Deputy AG
  • Associate AG
  • whatever ordering of Solicitor General and the various Assistant AGs the AG sets in advance
  • (applies in cases of recusal as well as vacancy)


This page compiled by Randall Calvert © 2018. Email comments and questions to calvert at wustl