United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2018 Decided February 26, 2019 

No. 18-3052 

IN RE: GRAND JURY INVESTIGATION

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:18-gj-00034) 

Paul D. Kamenar argued the cause and filed the briefs for 

appellant. 

James C. Martin argued the cause for amicus curiae 

Concord Management and Consulting LLC in support of 

appellant. With him on the briefs were Colin E. Wrabley, Eric 

A. Dubelier, and Katherine J. Seikaly. 

Montgomery Blair Sibley was on the brief for amicus 

curiae Montgomery Blair Sibley in support of appellant. 

Michael R. Dreeben, Attorney, U.S. Department of 

Justice, argued the cause for appellee. With him on the brief 

were Robert S. Mueller, III, Special Counsel, and Jeannie S. 

Rhee and Adam C. Jed, Attorneys. 

Elizabeth B. Wydra and Ashwin P. Phatak were on the 

brief for amici curiae Constitutional and Administrative Law 

Scholars in support of appellee. 
2 

Before: HENDERSON, ROGERS and SRINIVASAN, Circuit 

Judges. 

Opinion for the court filed by Circuit Judge ROGERS. 

ROGERS, Circuit Judge: Andrew Miller appeals an order 

holding him in contempt for failing to comply with grand jury 

subpoenas served on him by Special Counsel Robert S. 

Mueller, III. He contends the Special Counsel’s appointment 

is unlawful under the Appointments Clause of the Constitution, 

and therefore the contempt order should be reversed. We 

affirm. 

I. 

The relevant statutory and regulatory authority relating to 

the context in which this appeal arises are as follows. 

A. 

The Attorney General is the head of the Department of 

Justice (“the Department”). 28 U.S.C. § 503. The Attorney 

General must be appointed by the President with the advice and 

consent of the Senate. Id. Congress also created the position 

of Deputy Attorney General, who also must be appointed by 

the President with the advice and consent of the Senate. Id. 

§ 504. Congress has “vested” in the Attorney General virtually

“[a]ll functions of other officers of the Department,” id. § 509, 

and has empowered the Attorney General to authorize other 

Department officials to perform the functions of the Attorney 

General, id. § 510. Congress has also authorized the Attorney 

General to commission attorneys “specially retained under the 

authority of the Department” as “special assistant to the 

Attorney General or special attorney,” id. § 515(b), and 

provided “any attorney specially appointed by the Attorney 
3 

General under law, may, when specifically directed by the 

Attorney General, conduct any kind of legal proceeding, civil 

or criminal . . . which United States attorneys are authorized by 

law to conduct,” id. § 515(a). Congress has also provided for 

the Attorney General to “appoint officials . . . to detect and 

prosecute crimes against the United States.” Id. § 533(1). 

These statutes authorize the Attorney General to appoint 

special counsels and define their duties. See, e.g., United States 

v. Nixon, 418 U.S. 683, 694 (1974). 

At various times, independent counsels within the 

Department have conducted investigations and instituted 

criminal prosecutions pursuant to the Ethics in Government 

Act of 1978 (“the Act”). The Act authorized the appointment 

of an independent counsel upon a referral of a matter by the 

Attorney General to a three-judge court that could name an 

independent counsel. See 28 U.S.C. §§ 591–599 (expired). In 

1999, shortly before these provisions expired, the Department 

issued regulations to “replace” the Act with a procedure within

the Executive Branch for appointing special counsels. Office 

of Special Counsel, 64 Fed. Reg. 37,038 (July 9, 1999); 28 

C.F.R. §§ 600.1–600.10. A special counsel is to be afforded 

wide discretion in the conduct of the investigation while 

“ultimate responsibility for the matter and how it is handled” 

resides in the Attorney General. 64 Fed. Reg. at 37,038. 

Under Department regulations, the Attorney General 

establishes the Special Counsel’s jurisdiction and determines 

whether additional jurisdiction is necessary to resolve the 

assigned matter or matters. 28 C.F.R. § 600.4(a), (b). The 

Special Counsel is required to “comply with the rules, 

regulations, procedures, practices and policies of the 

Department of Justice.” Id. § 600.7(a). Additionally, the 

“Attorney General may request that the Special Counsel 

provide an explanation for any investigative or prosecutorial 
4 

step.” Id. § 600.7(b). And the Special Counsel must notify the 

Attorney General of important events in the investigation under

the Department’s Urgent Reports guidelines. Id. § 600.8(b). 

The regulations provide that after review the Attorney General 

may conclude that a contemplated action is “so inappropriate 

or unwarranted under established Departmental practices that 

it should not be pursued.” Id. § 600.7(b). During review, the 

Attorney General is to “give great weight” to the views of the 

Special Counsel. Id.

The regulations also address discipline, removal, and the 

resources for the Special Counsel’s investigation. The 

Attorney General has authority to discipline and to remove a 

Special Counsel for “misconduct, dereliction of duty, 

incapacity, conflict of interest, or for other good cause, 

including violation of Departmental policies.” Id. § 600.7(d). 

The Attorney General establishes the budget for the Special 

Counsel’s investigation, and is to determine whether the 

investigation should continue at the end of each fiscal year. Id. 

§ 600.8(a)(1), (a)(2). 

B. 

The circumstances giving rise to this appeal began on 

March 2, 2017, when then-Attorney General Jeff Sessions 

recused himself “from any existing or future investigations of 

any matters related in any way to the campaigns for President 

of the United States.” Press Release No. 17-237, U.S. Dep’t of

Justice, Attorney General Sessions Statement on Recusal (Mar. 

2, 2017). Department regulations provide that “no employee 

shall participate in a criminal investigation or prosecution if he 

has a personal or political relationship” with any person 

“involved in the conduct that is the subject of the investigation 

or prosecution.” 28 C.F.R. § 45.2. Attorney General Sessions 

announced in a press release that “[c]onsistent with the 

succession order for the Department of Justice,” the then-
5 

Acting Deputy Attorney General Dana Boente “shall act as and 

perform the functions of the Attorney General with respect to 

any matters from which I have recused myself to the extent they

exist.” Press Release No. 17-237. During testimony before the

U.S. House of Representatives Permanent Select Committee on 

Intelligence on March 20, 2017, then-Director James Comey 

confirmed that the Federal Bureau of Investigation (“FBI”) was 

investigating the Russian Government’s efforts to interfere in 

the 2016 U.S. presidential election, including investigating the 

nature of any links between President Trump’s campaign and 

the Russian Government. 

On April 26, 2017, Rod J. Rosenstein was sworn in as 

Deputy Attorney General. By Appointment Order of May 17, 

2017, invoking “the authority vested in me as Acting Attorney 

General, including 28 U.S.C. §§ 509, 510, and 515,” General 

Rosenstein appointed Robert S. Mueller, III, to serve as Special 

Counsel for the Department to investigate the Russian 

Government’s efforts to interfere in the 2016 presidential 

election and “related matters” and to prosecute any federal 

crimes uncovered during the investigation. U.S. Dep’t of 

Justice, Off. of Dep. Att’y Gen., Order No. 3915-2017, 

Appointment of Special Counsel to Investigate Russian 

Interference With the 2016 Presidential Election and Related 

Matters (May 17, 2017) (“Appointment Order”). The 

Appointment Order stated that “Sections 600.4 through 600.10 

of Title 28 of the Code of the Federal Regulations” shall apply

to the Special Counsel. Id. 

 Approximately one year later, Special Counsel Mueller 

issued multiple grand jury subpoenas requiring Andrew Miller 

to produce documents and to appear before the grand jury. 

After Miller failed to appear, the Special Counsel moved to 

compel his testimony and for an order to show cause why 

Miller should not be held in civil contempt for failure to appear 
6 

before the grand jury. Miller filed a motion to quash the 

subpoenas on the ground that the Special Counsel’s 

appointment violated the Appointments Clause of the 

Constitution, adopting by reference arguments made in a 

separate case by Concord Management and Consulting LLC 

(“Concord Management”), which was also being prosecuted by 

the Special Counsel. The district court denied the motion to 

quash and held Miller in civil contempt. In re Grand Jury 

Investigation, 315 F. Supp. 3d 602, 667 (D.D.C. 2018). 

II. 

On appeal, Miller challenges the authority of Special 

Counsel Mueller on the grounds that his appointment is 

unlawful under the Appointments Clause because: (1) the 

Special Counsel is a principal officer who was not appointed 

by the President with the advice and consent of the Senate; 

(2) Congress did not “by law” authorize the Special Counsel’s 

appointment; and (3) the Special Counsel was not appointed by 

a “Head of Department” because the Attorney General’s 

recusal from the subject matter of the Special Counsel’s 

investigation did not make the Deputy Attorney General the 

Acting Attorney General. This court’s review is de novo. See 

Recording Indus. Ass’n of America v. Verizon Internet Servs., 

Inc., 351 F.3d 1229, 1233 (D.C. Cir. 2003). 

 The Appointments Clause in Article II states: 

[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 
7 

Appointment of such inferior Officers, as they think 

proper, in the President alone, in the Courts of Law, or 

in the Heads of Departments. 

U.S. Const. art. II, § 2, cl. 2. 

 

A. 

As interpreted by the Supreme Court, the Appointments 

Clause distinguishes between “principal officers,” who must be 

nominated by the President with advice and consent of the 

Senate, and “inferior officers,” who may be appointed by the 

President alone, or by heads of departments, or by the judiciary, 

as Congress allows. Morrison v. Olson, 487 U.S. 654, 670–71 

(1988) (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)). 

Thus, if Special Counsel Mueller is a principal officer, his 

appointment was in violation of the Appointments Clause 

because he was not appointed by the President with advice and 

consent of the Senate. Binding precedent instructs that Special 

Counsel Mueller is an inferior officer under the Appointments 

Clause. 

An inferior officer is one “whose work is 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). 

In Edmond, the Supreme Court applied three factors to 

determine whether an officer was inferior: degree of oversight,

final decision-making authority, and removability. Id. at 663–

66. According to Miller, those considerations point to Special

Counsel Mueller being a principal, rather than inferior, officer 

because the Office of Special Counsel regulations impose 

various limitations on the Attorney General’s ability to exercise 

effective oversight of the Special Counsel. But as 

foreshadowed in this court’s opinion in In re Sealed Case, 829 

F.2d 50 (D.C. Cir. 1987), a supervisor’s ability to rescind 
8 

provisions assuring an officer’s independence can render that 

officer inferior. There, this court recognized that an 

independent counsel was an inferior officer because his office 

was created pursuant to a regulation and “the Attorney General 

may rescind this regulation at any time, thereby abolishing the

Office of Independent Counsel.” Id. at 56; see Morrison, 487 

U.S. at 721 (Scalia, J., dissenting). 

The Attorney General, an officer appointed by the 

President with the advice and consent of the Senate, has 

authority to rescind at any time the Office of Special Counsel 

regulations or otherwise render them inapplicable to the 

Special Counsel. Unlike the independent counsel in Morrison, 

487 U.S. at 660–64, whose independence and tenure protection 

were secured by Title VI of the Ethics in Government Act, 

Special Counsel Mueller is subject to greater executive 

oversight because the limitations on the Attorney General’s 

oversight and removal powers are in regulations that the 

Attorney General can revise or repeal, see 5 U.S.C. § 553(a)(2), 

(b)(A), (b)(B), (d)(3); absent such limitations, the Attorney 

General would retain plenary supervisory authority of the 

Special Counsel under 28 U.S.C. § 509. Furthermore, even if 

at the time of the appointment of Special Counsel Mueller only 

the Attorney General could rescind the regulations, the Acting 

Attorney General could essentially accomplish the same thing 

with specific regard to Special Counsel Mueller by amending 

his Appointment Order of May 17, 2017, to eliminate the 

Order’s good cause limitations on the Special Counsel’s 

removal (on which Miller focuses particular attention). 

In either event, Special Counsel Mueller effectively serves 

at the pleasure of an Executive Branch officer who was 

appointed with the advice and consent of the Senate. See 28 

U.S.C. §§ 509, 515(a), 516; Free Enter. Fund v. Pub. Co. 

Accounting Oversight Bd., 561 U.S. 477, 509 (2010); 
9 

Appointment Order (May 17, 2017). The control thereby 

maintained means the Special Counsel is an inferior officer. 

See Sealed Case, 829 F.2d at 56–57. Miller’s contention that 

Special Counsel Mueller is a principal officer under the 

Appointments Clause thus fails.

B. 

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. 

Miller contends, unpersuasively, that the quoted sentence 

in Nixon, 418 U.S. at 694, is dictum because the issue whether 

the Attorney General had statutory authority to appoint a 

special prosecutor was not directly presented and the Supreme 

Court did not analyze the text of the specific statutes. It is true 

that a statement not necessary to a court’s holding is dictum. 

See City of Okla. City v. Tuttle, 471 U.S. 808, 842 (1985); 

Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); 

Martello v. Hawley, 300 F.2d 721, 722–23 (D.C. Cir. 1962). 

But Miller misreads Nixon, for the Supreme Court was 

presented with the question whether a justiciable controversy 

existed. When the Special Prosecutor issued a subpoena to the 

President to produce certain recordings and documents, the 

President moved to quash the subpoena, asserting a claim of 

executive privilege, id. at 688, and maintained the claim was 
10 

nonjusticiable because it was “intra-executive” in character, id. 

at 689. 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). 

Furthermore, in Sealed Case, 829 F.2d at 52–53, this court 

recognized that the statutory scheme creating the Department 

vests authority in the Attorney General to appoint inferior 

officers to investigate and to prosecute matters with a level of 

independence. There, the Attorney General appointed an 

independent counsel and promulgated regulations to create an 

office to investigate whether Lieutenant Colonel Oliver L. 

North and other officials violated federal criminal law in 

connection with the shipment or sale of military arms to Iran 

and the transfer or diversion of funds connected to any sales 

(referred to as the Iran/Contra matter). The Attorney General 

also authorized the independent counsel to prosecute any 

violations of federal criminal laws uncovered during 

investigation of the Iran/Contra matter. Id. at 52. North 

refused to comply with a grand jury subpoena, arguing that the 

independent counsel’s appointment was invalid. Id. at 54–55. 

This court disagreed: 
11 

We have no difficulty concluding that the Attorney 

General possessed the statutory authority to create the 

Office of Independent Counsel: Iran/Contra and to 

convey to it the ‘investigative and prosecutorial 

functions and powers’ described in . . . the 

regulation. . . . While [5 U.S.C. § 301 and 28 U.S.C. 

§§ 509, 510, and 515] do not explicitly authorize the 

Attorney General to create an Office of Independent 

Counsel virtually free of ongoing supervision, we read 

them as accommodating the delegation at issue here. 

Id. at 55. 

The issue before the court was whether the independent 

counsel was authorized to investigate and to prosecute officials 

in regard to the Iran/Contra matter. As such, the Attorney 

General’s authority to appoint an independent counsel was 

antecedent to deciding whether the Attorney General validly 

delegated authority to the independent counsel. The court’s 

quoted statements regarding the Attorney General’s statutory 

authority to appoint an independent counsel are, therefore, not

dicta as Miller suggests. 

To the extent Miller incorporates arguments of Amicus 

Curiae Concord Management, he maintains that in Sealed Case 

this court held only that the Attorney General had authority to

delegate powers to an already appointed position inside the 

Department, not authority to appoint a new special counsel 

outside of the Department. The court expressly noted that the 

statutory scheme authorized the Attorney General to delegate 

powers to “others within the Department of Justice.” Id. at 55 

n.29. Miller is correct that in that case, the independent counsel 

had two parallel appointments: one from the Attorney General 

to the Office of Independent Counsel: Iran/Contra and an 

earlier one from a Special Division under the Ethics in 
12 

Government Act, 28 U.S.C. § 593(b). But this court explicitly 

declined to address whether the independent counsel’s initial 

appointment under the Act was valid, thereby avoiding the 

need to consider any constitutional questions raised by the Act. 

Sealed Case, 829 F.2d at 55–56, 62; see Appellee Br. 34. 

Therefore, this court assumed that the independent counsel did 

not already hold a position inside the Department when it held 

that the Attorney General’s appointment of him to the Office 

of Independent Counsel: Iran/Contra was valid. That analysis 

applies equally to the facts of the instant case. 

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). 

C. 

 The statutory and regulatory scheme demonstrate, contrary 

to Miller’s contention, that at the time of Special Counsel 

Mueller’s appointment, Acting Attorney General Rosenstein 

was the “Head of Department” under the Appointments Clause 

as to the matter on which the Attorney General was recused. 

The Attorney General is the head of the Department of Justice, 

28 U.S.C. § 503, and an Acting Attorney General becomes the 

head of the Department when acting in that capacity because 

an acting officer is vested with the same authority that could be 

exercised by the officer for whom he acts, Ryan v. United 
13 

States, 136 U.S. 68, 81 (1890); Keyser v. Hitz, 133 U.S. 138, 

145–46 (1890); see also Acting Officers, 6 Op. O.L.C. 119, 120 

(1982). 

Miller’s view that the Attorney General’s recusal did not 

make the Deputy Attorney General the “Acting” Attorney 

General, and, therefore, the Deputy Attorney General lacked 

authority to appoint Special Counsel Mueller as an inferior 

officer, ignores the statutory scheme. Section 508(a) of Title

28 provides: “In case of a vacancy in the office of Attorney 

General, or of his absence or disability, the Deputy Attorney 

General may exercise all the duties of that office.” The word 

“disability” means the “inability to do something” or “lack of 

legal qualification to do a thing.” Webster’s Third New 

International Dictionary 642 (1981). Congress is presumed to 

use words to have their ordinary meaning absent indication to 

the contrary. Russello v. United States, 464 U.S. 16, 21 (1983); 

Perrin v. United States, 444 U.S. 37, 42 (1979). 

Miller would qualify Congress’s meaning as limited to a 

“wholesale absence or disability, not a recusal to act on a single 

issue.” Appellant Br. 36–41. His interpretation is contrary to 

the structure Congress created for the Department whereby the 

Deputy Attorney General can carry on when the Attorney 

General is unable to act on a matter. A statute and Department

regulation disqualify any officer or Department employee from 

participating in an investigation or prosecution that may 

involve “a personal, financial, or political conflict of interest, 

or the appearance thereof.” 28 U.S.C. § 528; see 28 C.F.R. 

§ 45.2(a). Department regulation 28 C.F.R. § 45.2(a) bars 

involvement where there is a conflict of interest, and thenAttorney General Sessions invoked that regulation as to the 

investigation of Russia’s interference in the 2016 presidential

campaign. Hon. Jeff Sessions, Attorney General, Prepared 

Remarks to the United States Senate Select Committee on 
14 

Intelligence (June 13, 2017). At the time of the Special 

Counsel’s appointment then, the Attorney General had a 

“disability” because he lacked legal qualification to participate 

in any matters related to that conflict. See Russello, 464 U.S. 

at 21; Webster’s Third New International Dictionary 642 

(1981). Under Miller’s view, there could be no Attorney 

General, acting or otherwise, to be in charge of the matter. 

Our understanding of Congress’s use of the word 

“disability” in Section 508 accords with courts’ interpretations 

of Rule 25(a) of the Federal Rules of Criminal Procedure. Rule

25(a) provides that if a judge cannot proceed to preside at a trial 

due to “death, sickness, or other disability,” another judge may 

complete the trial. Courts have interpreted “disability” to 

include recusal. In re United States, 614 F.3d 661, 661 (7th 

Cir. 2010); United States v. Hall, 171 F.3d 1133, 1153 (8th Cir. 

1999); United States v. Sartori, 730 F.2d 973, 976 (4th Cir. 

1984); Bennett v. United States, 285 F.2d 567, 572 (5th Cir. 

1960). The authorities Miller cites to support his interpretation 

— the Vacancies Act of 1868 and Moog Inc. v. United States, 

Misc. No. Civ-90-215E, 1991 WL 46518 (W.D.N.Y. Apr. 1, 

1991) — provide no basis to conclude Congress intended a 

different meaning of “disability” in Section 508(a). In 

challenging the validity of the analogy on the basis that all 

federal judges have been appointed by the President with the 

advice and consent of the Senate, 28 U.S.C. § 133, Miller 

overlooks that by statute so is the Deputy Attorney General, 28

U.S.C. § 504. 

Therefore, the Attorney General’s single-issue recusal is a 

“disability” that created a vacancy that the Deputy Attorney 

General was eligible to fill. Miller points to no basis on which 

this court could conclude that Congress did not intend the term

“disability” to have its ordinary meaning. See Russello, 464 

U.S. at 21. 
15 

Still Miller maintains that Section 508 does not make the 

Deputy Attorney General an “acting” officer but only 

authorizes the Deputy Attorney General to perform the duties 

of the Attorney General’s office and the Attorney General 

remains the “Head of Department” for Appointments Clause 

purposes. Congress has authorized the Deputy Attorney 

General to perform “all the duties of th[e] office” in case of a 

vacancy, 28 U.S.C. § 508(a), such that the Deputy becomes the 

“Acting” Attorney General. As to the recused matter, the 

Acting Attorney General has authority to appoint inferior 

officers because that is part of the authority that could be 

exercised by the Attorney General. Miller’s position that the 

Deputy Attorney General only becomes the “Acting” Attorney 

General if the Federal Vacancies Reform Act, 5 U.S.C. § 3345, 

is triggered — and that the Act is triggered, he maintains, only 

upon a complete inability to perform the functions and duties 

of the Attorney General’s office — overlooks that the Act 

explicitly provides it is not the exclusive means to designate an 

“acting” official. 5 U.S.C. § 3347(a)(1)(B). Other statutes may 

temporarily authorize an officer or employee to perform the 

functions and duties of a specified office. Id. Miller does not 

explain why 28 U.S.C. § 508 is not such a statute that 

temporarily authorizes an officer to temporarily perform the 

duties of the Attorney General. See S. Rep. No. 105-250, at 

15–16 (1998); see also Noel Canning v. NLRB, 705 F.3d 490, 

511 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 

(2014). Therefore, Special Counsel Mueller was properly 

appointed by a head of Department, who at the time was the 

Acting Attorney General. 

Because the Special Counsel is an inferior officer, and the 

Deputy Attorney General became the head of the Department 

by virtue of becoming the Acting Attorney General as a result 

of a vacancy created by the disability of the Attorney General 
16 

through recusal on the matter, we hold that Miller’s challenge 

to the appointment of the Special Counsel fails. Accordingly, 

we affirm the order finding Miller in civil contempt.