re: Rep. Thomas Massie Nails AG Garland re: Illegal Appointment of Jack Smith As Spec. Counsel

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I'm old enough to remember when a large contingent here hated Massie.

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The question whether Congress has “by law” vested appointment of Special Counsel Mueller in the Attorney General has already been decided by the Supreme Court. In United States v. Nixon, 418 U.S. 683, 694 (1974), the Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.” In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon. Id.

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The Supreme Court held there was a justiciable controversy because the regulations issued by the Attorney General gave the Special Prosecutor authority to contest the President’s invocation of executive privilege during the investigation. Id. at 695–97. In this analysis, the Attorney General’s statutory authority to issue the regulations was a necessary antecedent to determining whether the regulations were valid, and, therefore, was necessary to the decision that a justiciable controversy existed. The Supreme Court’s quoted statement regarding the Attorney General’s power to appoint subordinate officers is, therefore, not dictum. Moreover, under this court’s precedent, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012).

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Because binding precedent establishes that Congress has “by law” vested authority in the Attorney General to appoint the Special Counsel as an inferior officer, this court has no need to go further to identify the specific sources of this authority. See generally Grand Jury Investigation, 315 F. Supp. 3d at 651–58; see also 28 U.S.C. §§ 515(b), 533(1). Miller’s cursory references to a “clear statement” argument he presented to the district court are insufficient to preserve that issue for appeal and it is forfeited. New York Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983); see United States v. Olano, 507 U.S. 725, 733 (1993).

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If there was some sorta "gotcha" moment in that entire 5 to 6 minute clip, point it out.

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