Whether for a new park in a powerful congressman’s home district or for a special counsel, the country’s checks mustn’t clear unless Congress actually says they should.

Perhaps it’s a sign of the times, but many citizens don’t pay much attention to how the government keeps taxpayers’ checks from bouncing. The Constitution does, however. Congress—and only Congress—holds the power of the purse.

We might wonder, then, how Special Counsel Robert Mueller spends money. Congress has not specifically appropriated money to fund Mueller’s investigations and prosecutions. How, then, do Mueller’s checks clear? Recently, Mueller provided a little-noticed answer that raises serious legal and constitutional concerns.

Robert Mueller’s Spending Report

Late last month, Mueller released a spending report. The report lays out the legal authority that Mueller claims to spend money. Mueller claims his spending is principally authorized by “the permanent, indefinite appropriation for independent counsels.” Muller claims “the [Department of Justice (DOJ)] has determined [that this appropriation] is legally available to fund” his investigation. Mueller cites a 2004 Government Accountability Office (GAO) opinion that “this appropriation was legally available to fund special counsels.”

The permanent and indefinite appropriation is important to Mueller’s investigations and prosecutions. According to Mueller’s report, from October 1, 2017, through March 31, 2018, this appropriation accounted for $4,506,624 of Mueller’s spending. That’s about half of all Mueller’s spending during that time and all the spending during that time on salaries and benefits. (The remainder of Mueller’s spending is unreimbursed expenses incurred by other DOJ components—essentially money siphoned from other investigations.)

Mueller claims the authority for his spending is codified in statutory notes to Section 591 of Title 28 of the United States Code. These notes do state that Congress established “a permanent indefinite appropriation … within the Department of Justice to pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law.” The notes state that Congress did so in Title II of Public Law 100–202, December 22, 1987. Sure enough, Congress did.

But does the permanent and indefinite appropriation for independent counsels apply to special counsels?

What GAO Actually Thinks About This

Mueller cites the GAO opinion as “agreeing with the DOJ that this appropriation was legally available to fund special counsels.” The opinion concerns the appointment in December 2003 of Patrick Fitzgerald, then a Senate-confirmed U.S. attorney, as special counsel, by then-Deputy Attorney General James Comey. (Fitzgerald, you may recall, investigated who revealed the identity of undercover CIA officer Valerie Plame.)

As noted above, the permanent and indefinite appropriation is available to fund investigations and prosecutions by “independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law.” The GAO focused on the “other law” prong of the appropriation because Section 591 et seq. of Title 28 of the U.S. Code—the independent-counsel law—lapsed in 1999.

“The term ‘independent counsel’ is not defined in the permanent indefinite appropriation,” the GAO noted in beginning its analysis. So, the GAO considered whether Fitzgerald was an “independent counsel appointed pursuant to … other law.” To decide, the GAO “looked for indicia of [the Special Counsel’s] independence.” In this regard, the GAO looked for Fitzgerald’s de jure independence—viz., independence expressly granted by law.

Under the GAO’s reasoning, an “independent counsel appointed pursuant to … other law” who is entitled to the permanent and indefinite appropriation enjoys the de jure independence that independent counsels appointed under the lapsed independent-counsel law generally did. Under a provision of the lapsed independent-counsel law, independent counsels enjoyed the “independent authority to exercise all investigative and prosecutorial functions and powers of … the Attorney General.”

That makes sense. The permanent and indefinite appropriation was originally for independent counsels. As the GAO explained in its opinion, when Congress considered the permanent and indefinite appropriation, in 1987, because of “legal challenges … underway regarding the constitutionality of the procedure followed to appoint independent counsels”—presumably the famed case Morrison v. Olson the Supreme Court decided the following year—“the independent counsels appointed under ‘other law’ around [that] time…. were the independent counsels that also had been appointed in conformity with the requirements of the independent counsel law.”

Put differently, the same independent counsels were being appointed under dual authority to ensure that their investigations would continue should Morrison v. Olson strike down the appointment procedure in the independent-counsel law.

In looking for “indicia of independence” for Fitzgerald, the GAO concluded that “[t]he [DOJ], in appointing Special Counsel Fitzgerald, has afforded him independence by delegating all of the Attorney General’s authority with respect to [an] investigation and instructing him to exercise that authority independent of the control of any officer of the Department.”

The GAO further concluded that to the extent they limited Fitzgerald’s independence, regulations in Part 600 of Title 28 of the Code of Federal Regulations were waived. The GAO noted, “In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald’s delegation of authority to state that the authority previously delegated to him is plenary…. [and that] the title of ‘Special Counsel’ in this matter should not be misunderstood to suggest that [his] position and authorities [were] defined and limited by 28 CFR Part 600.”

Not so with Mueller.

Let’s Apply that GAO Opinion to Mueller

Mueller’s independence, as a de jure matter, is clearly “defined and limited” by Part 600 of Title 28 of the Code of Federal Regulations. This means Mueller lacks the “indicia of independence” the GAO required in 2004 to fit Fitzgerald into Congress’ permanent and indefinite appropriation.

The public order appointing Mueller—who, unlike Fitzgerald at the time of his appointment, is not currently a Senate-confirmed officer—states that “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” These sections limit Mueller’s de jure independence, subjecting him to the supervision of Deputy Attorney General Rod Rosenstein, the acting attorney general in charge of Mueller’s investigation to the extent that Attorney General Jeff Sessions is recused.

In particular, Section 600.7(b) states that Rosenstein “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” In de jure independence, Mueller is no Fitzgerald, and certainly no independent counsel.

At bottom, Mueller is relying on a broad interpretation of a three-decade old appropriation for an “independent counsel” that, with the lapse of the independent-counsel law, does not really exist anymore.

Here’s the DOJ’s Choice

To strengthen Mueller’s claim to the permanent and indefinite appropriation, the DOJ could grant Mueller greater de jure independence. But not so fast.

The Appointments Clause of the Constitution requires that principal officers of the executive branch be appointed by the president and confirmed by the Senate. Mueller wasn’t. Yet to be exempt from that constitutionally mandated appointments procedure, the Supreme Court holds that an appointed officer must have a boss—that is, the officer must be “directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate” (Edmond v. United States, 520 U.S. 651, 663 (1997)).

If the DOJ grants Mueller de jure independence from any such boss, then Mueller is a principal officer and his appointment therefore violates the Appointments Clause of the Constitution.

Alternatively, the DOJ could seek another congressional appropriation to replace Mueller’s spending from the permanent and indefinite appropriation. But Congress is unlikely to agree to such new appropriation with a veto-proof margin.

Conceivably, perhaps, the DOJ could replace Mueller with a Senate-confirmed officer and grant his replacement greater de jure independence. It is unclear, however, whether the DOJ would take such a step now. As to his authority to be appointed and to spend money, Mueller is under a political-legal whipsaw.

Congress Has a Choice to Make

Congress has a constitutionally mandated role in appropriating money. Under the constitutional nondelegation doctrine, Congress cannot wholly delegate its legislative functions to an executive-branch agency. If “independent counsel appointed pursuant to … other law” were interpreted as whomever an executive-branch officer whenever designates for whatever purpose, surely nondelegation concerns would arise.

This is ironic, as one would think that the last thing Congress would seek to delegate is its power to spend. But whether for a new park in a powerful congressman’s home district or for a special counsel, the country’s checks mustn’t clear unless Congress actually says they should. Checks and balances, and all that.