FBI Director: Appointment and Tenure
Released: 2014-02-19T00:00:00

Introduction

This report provides an overview of the development of the process for appointing the Director of the Federal Bureau of Investigation (FBI), briefly discusses the history of nominations to this position, and identifies related congressional hearing records and reports. Two appendixes provide background and legal analysis regarding a 2011 statute that allowed Robert S. Mueller III to be appointed to a second, two-year term.

Overview

Federal statute provides that the Director of the FBI is to be appointed by the President by and with the advice and consent of the Senate. When there is a vacancy or an anticipated vacancy, the President begins the appointment process by selecting and vetting his preferred candidate for the position. The vetting process for presidential appointments includes an FBI background check and financial disclosure. The President then submits the nomination to the Senate, where it is referred to the Committee on the Judiciary. The Committee on the Judiciary usually holds hearings on a nomination for the FBI Director. The committee may then vote to report the nomination back to the Senate favorably, unfavorably, or without recommendation. Once reported, the nomination is available for Senate consideration. If the Senate confirms the nomination, the individual is formally appointed to the position by the President.

Prior to the implementation of the current nomination and confirmation process, J. Edgar Hoover was Director of the FBI for nearly 48 years. He held the position from May 10, 1924, until his death on May 2, 1972. The current process dates from 1968, when the FBI Director was first established as a presidentially appointed position requiring Senate confirmation in an amendment to the Omnibus Crime Control and Safe Streets Act of 1968. The proposal for a presidentially appointed Director had been introduced and passed in the Senate twice previously, but had never made it through the House. Floor debate in the Senate focused on the inevitable end of Hoover's tenure (due to his advanced age), the vast expansion of the FBI's size and role under his direction, and the need for Congress to strengthen its oversight role in the wake of his departure. In 1976, the 10-year limit for any one incumbent was added as part of the Crime Control Act of 1976. This provision also prohibits the reappointment of an incumbent. As with the previous measure, the Senate had introduced and passed this provision twice previously, but it had failed to pass the House.

Since 1972, seven nominations for FBI Director have been confirmed, and two other nominations have been withdrawn. Due to a 2011 statute allowing for the reappointment of a specific incumbent, two of the seven confirmed nominations were of the same person, Robert S. Mueller III. Each of these nominations is shown in Table 1 and discussed below.

FBI Nominations and Confirmations, 1973–2013

L. Patrick Gray III. On the day after the death of long-time Director J. Edgar Hoover, L. Patrick Gray was appointed acting Director. President Richard M. Nixon nominated Gray to be Director on February 21, 1973. Over the course of nine days, the Senate Committee on the Judiciary held hearings on the nomination. Although Gray's nomination was supported by some in the Senate, his nomination ran into trouble during the hearings as others Senators expressed concern about partisanship, lack of independence from the White House, and poor handling of the Watergate investigation. The President withdrew the nomination on April 17, and Gray resigned as acting Director on April 27, 1973.

Clarence M. Kelley. Clarence M. Kelley was the first individual to become FBI Director through the nomination and confirmation process. A native of Missouri, Kelley was a 21-year veteran of the FBI, becoming chief of the Memphis field office. He was serving as Kansas City police chief when President Nixon nominated him on June 8, 1973. During the three days of confirmation hearings, Senators appeared satisfied that Kelley would maintain nonpartisan independence from the White House and be responsible to their concerns. The Senate Committee on the Judiciary approved the nomination unanimously the following day. He was sworn in by the President on July 9, 1973. Kelly remained FBI Director until his retirement on February 23, 1978.

Frank M. Johnson Jr. With the anticipated retirement of Clarence Kelley, President Jimmy Carter nominated U.S. District Court Judge Frank M. Johnson Jr. of Alabama, on September 30, 1977. Johnson faced serious health problems around the time of his nomination, however, and the President withdrew the nomination on December 15, 1977.

William H. Webster. In the aftermath of the withdrawn Johnson nomination, President Carter nominated U.S. Court of Appeals Judge William H. Webster to be Director on January 20, 1978. Prior to his service on the U.S. Court of Appeals for the Eighth Circuit, Webster had been U.S. Attorney and then U.S. District Court Judge for the Eastern District of Missouri. After two days of hearings, the Senate Committee on the Judiciary unanimously approved the nomination and reported it to the Senate. The Senate confirmed the nomination on February 9, 1978, and Webster was sworn in on February 23, 1978. He served as Director of the FBI until he was appointed as Director of the Central Intelligence Agency (CIA) in May 1987.

William S. Sessions. On September 9, 1987, President Ronald W. Reagan nominated William S. Sessions, Chief Judge of the U.S. District Court of Western Texas, to replace Webster. Prior to his service on the bench, Sessions had worked as chief of the Government Operations Section of the Criminal Division of the Department of Justice and as U.S. Attorney for the Western District of Texas. Following a one-day hearing, the Senate Committee on the Judiciary unanimously recommended confirmation. The Senate confirmed the nomination, without opposition, on September 25, and Sessions was sworn in on November 2, 1987.

From 1973 through 2013, Sessions was the only FBI Director removed from office. President William J. Clinton removed Sessions from office on July 19, 1993, citing "serious questions ... about the conduct and the leadership of the Director," and a report on "certain conduct" issued by the Office of Professional Responsibility at the Department of Justice. Some Members of Congress questioned the dismissal, but they did not prevent the immediate confirmation of Sessions's successor.

Louis J. Freeh. President Clinton nominated former FBI agent, federal prosecutor, and U.S. District Court Judge Louis J. Freeh of New York as FBI Director on July 20, 1993, the day following Sessions's removal. The Senate Committee on the Judiciary held one day of hearings and approved the nomination. The nomination was reported to the full Senate on August 3, and Freeh was confirmed on August 6, 1993. He was sworn in on September 1, 1993, and served until his voluntary resignation, which became effective June 25, 2001.

Robert S. Mueller III. On July 18, 2001, President George W. Bush nominated Robert S. Mueller III to succeed Freeh, and he was confirmed by the Senate on August 2, 2001, by a vote of 98-0. Mueller served as the U.S. Attorney for the Northern District of California in San Francisco, and as the Acting Deputy U.S. Attorney General from January through May 2001. The former marine had also been U.S. Attorney for Massachusetts and served as a homicide prosecutor for the District of Columbia. Under President George Bush, Mueller was in charge of the Department of Justice's criminal division during the investigation of the bombing of Pan Am Flight 103 and the prosecution of Panamanian leader Manuel Noriega.

From 1973 through 2013, Mueller was the only FBI Director to be appointed to more than one term. P.L. 112-24 , enacted on July 26, 2011, allowed the incumbent Director to be nominated for, and appointed to, an additional two-year term. After the bill was signed, Mueller was nominated for this second term by President Barack Obama, and he was confirmed the following day by vote of 100-0. Mueller's two-year term expired on September 4, 2013.

The legislative circumstances surrounding Mueller's reappointment are further detailed in Appendix A . Notably, the law passed by Congress to extend Muller's tenure raised legal questions that might arise again in the event of a similar situation. In view of this possibility, Appendix B discusses precedent for lengthening the tenure of an office and the constitutionality of extending the tenure of the directorship for the current incumbent. It further addresses whether it would have been necessary for Mueller to be appointed a second time and be subject to Senate confirmation hearings under such circumstances, given that an earlier version of the Senate bill would have allowed a two-year term without confirmation.

James B. Comey Jr. As Mueller's unique two-year term drew to a close, President Obama nominated James B. Comey Jr. to succeed him. Comey had previously served as United States Attorney for the Southern District of New York, from January 2002 to December 2003, and as Deputy Attorney General, from December 2003 to August 2005. The President submitted Comey's nomination on June 21, 2013. The Senate Committee on the Judiciary held a hearing on the nomination on July 9 and voted unanimously to report the nomination favorably to the full Senate on July 18. The Senate confirmed the nomination by a vote of 93-1 on July 29. Comey began his 10-year term of office on September 4, 2013.

Hearings

U.S. Congress. Senate. Committee on the Judiciary. Nomination of Louis Patrick Gray III , of Connecticut, to be Director, Federal Bureau of Investigation . Hearings. 93 rd Cong., 1 st sess., February 28, 1973; March 1, 6, 7, 8, 9, 12, 20, 21, and 22, 1973. Washington: GPO, 1973.

—. Executive Session, Nomination of L. Patrick Gray , III to be Directo r, Federal Bureau of Investigation . Hearing. 93 rd Cong., 1 st sess., April 5, 1973. Unpublished.

—. Nomination of Clarence M. Kelley to be Director of the Federal Bureau of Investigation . Hearings. 93 rd Cong., 1 st sess., June 19, 20, and 25, 1973. Washington: GPO, 1973.

—. Nomination of William H. Webster, of Missouri, to be Director of the Federal Bureau of Investigation . Hearings. 95 th Cong., 2 nd sess., January 30 and 31, 1978; February 7, 1978. Washington: GPO, 1978.

—. Nomination of William S. Sessions, of Texas, to be Director of the Federal Bureau of Investigation . Hearings. 100 th Cong., 1 st sess., September 9, 1987. S.Hrg. 100-1080. Washington: GPO, 1990.

—. Nomination of Louis J. Freeh, of New York, to be Director of the Federal Bureau of Investigation . Hearings. 103 rd Cong., 1 st sess., July 29, 1993. S.Hrg. 103-1021. Washington: GPO, 1995.

—. Confirmation Hearing on the Nomination of Robert S. Mueller, III to be Director of the Federal Bureau of Investigation . Hearings. 107 th Cong., 1 st sess., July 30-31, 2001. S.Hrg. 107-514. Washington: GPO, 2002.

—. Subcommittee on FBI Oversight. Ten-Year Term for FBI Director . Hearing. 93 rd Cong., 2 nd sess., March 18, 1974. Washington: GPO, 1974.

Reports

U.S. Congress. Senate. Committee on the Judiciary. Ten-Year Term for FBI Director . Report to accompany S. 2106 . 93 rd Cong., 2 nd sess. S.Rept. 93-1213. Washington: GPO, 1974.

—. William H. Webster to be Director of the Federal Bureau of Investigation . Report to accompany the nomination of William H. Webster to be Director of the Federal Bureau of Investigation. 95 th Cong., 2 nd sess., February 7, 1978. Exec. Rept. 95-14. Washington: GPO, 1978.

—. William S. Sessions to be Director of the Federal Bureau of Investigation . Report to accompany the nomination of William Sessions to be Director of the Federal Bureau of Investigation. 100 th Cong., 1 st sess., September 15, 1987. Exec. Rept. 100-6. Washington: GPO, 1987.

—. A Bill to Extend the Term of the Incumbent Director of the Federal Bureau of Investigation . Report to accompany S. 1103 . 112 th Cong., 1 st sess., June 21, 2011. S.Rept. 112-23 . Washington: GPO, 2011.

Appendix A. Reappointment of Robert S. Mueller III

The 10-year term of Director Robert S. Mueller III was due to expire in August or September 2011. In early May 2011, the White House announced that President Barack Obama would seek legislation to permit Mueller to stay for an extra two years, citing the need for continuity in national security at the FBI while leadership transitions take place at other intelligence agencies. On May 26, 2011, Senator Patrick J. Leahy, chairman of the Senate Committee on the Judiciary, introduced S. 1103 , a bill to extend the term of the incumbent Director of the FBI for an additional two years. The bill would not have required renomination or reconfirmation of the incumbent. S. 1103 was cosponsored by the ranking Member of the committee, Senator Chuck Grassley, as well as the leadership of the Senate Select Committee on Intelligence, Chairman Dianne Feinstein and Vice Chairman Saxby Chambliss.

On June 8, 2011, the Senate Committee on the Judiciary held a hearing on the proposed extension of Mueller's tenure. Mueller was the first witness, and responded to Members' questions about both the proposal to extend his term in office and substantive issues related to the policies and operations of the FBI. During the second, and final, panel of the hearing, the questions and statements of committee Members, as well as the testimony of witnesses, was primarily directed toward constitutional considerations related to the bill.

On June 16, 2011, the Senate Committee on the Judiciary considered the bill, and adopted, by unanimous consent, a substitute amendment offered by Chairman Leahy that added a section on findings to the original text. The committee tabled an amendment offered by Senator Tom Coburn that would have authorized an additional two-year term to which the current incumbent could be nominated and confirmed with the consent of the Senate. The committee voted to report favorably the bill, as amended, and issued an accompanying report on June 21, 2011. A few days later, at the request of Senator Coburn, minority views on the bill were printed in the Congressional Record by unanimous consent.

Subsequent news reports indicated that the Administration had agreed to the Coburn approach to renominate the Director for an extra two-year period. Chairman Leahy, on July 18, 2011, remarked that he "was willing to proceed along the lines of an alternative approach" proposed by Senator Coburn because he "was assured by the Senator from Oklahoma that he would get unanimous consent to do all the short time agreements to get the bill passed, get his amendment passed, get it through the House and back, and get Director Mueller confirmed with a 2-hour time agreement."

Even though he had indicated earlier that this could be "an additional, unnecessary and possibly dangerous complication," Chairman Leahy concluded that "if we did all of [the aforementioned before August 2, 2011], it would not be the best of solutions, but it would be better than what we have now."

Although reportedly subject of a hold that was eventually lifted, the Senate, on July 21, 2011, took up the bill and amended it with the Coburn language. The bill, as amended, was then passed by unanimous consent. The Senate also agreed that, if the bill were passed by the House and signed into law, a subsequent nomination would receive expedited consideration

[I]f Robert S. Mueller, III, is nominated to be Director of the Federal Bureau of Investigation, the nomination be placed directly on the Executive Calendar; that at a time to be determined by the majority leader, in consultation with the Republican leader, the Senate proceed to executive session to consider the nomination; that there will be 2 hours for debate equally divided in the usual form; that upon the use or yielding back of time, the Senate proceed to vote without intervening action or debate on the nomination; the motion to reconsider be considered made and laid upon the table with no intervening action or debate; that no further motions be in order to the nomination; that any statements related to the nomination be printed in the Record; that the President be immediately notified of the Senate's action, and the Senate resume legislative session.

The House considered the bill under suspension of the rules, and it was approved by voice vote. On the following day, July 26, President Obama signed the bill into law ( P.L. 112-24 ).

President Obama immediately nominated Mueller to a second, two-year term. The Senate considered the nomination pursuant to the terms of the July 21 agreement. On July 27, 2011, Mueller was confirmed by a vote of 100-0.

Appendix B. Legal Overview of Extending a Term of Office

This appendix first discusses precedent for lengthening the tenure of an office. It is followed by a discussion regarding the constitutionality of extending the tenure of the directorship of the FBI, as well as whether it would have been necessary for Mueller to be appointed a second time and be subject to Senate confirmation hearings under such circumstances.

Appointment and Precedent for Extending a Term of Office

Congress has previously lengthened the term of office for incumbents. For example, Congress extended the terms of the members serving on the Displaced Persons Commission for purposes of permitting the commission to finish carrying out its duties. The original act, passed in 1948, established a commission consisting of three commissioners, appointed by the President with the advice and consent of the Senate, whose terms were to end June 30, 1951. Prior to June 30, however, Congress amended the act to extend the terms of the commissioners, and that of the commission, through August 31, 1952. The Attorney General issued an opinion in response to the President's inquiry as to whether two incumbent commissioners' existing appointments were valid until August 31, 1952, or if the commissioners would cease to hold office on June 30, 1951. Citing prior incidents where Congress extended terms of offices for certain commissions, the Attorney General concluded there would be no need for the President to submit new nominations to the Senate, and that the two commissioners would continue to hold office validly after June 30.

Congress has also extended the life of the United States Parole Commission (Parole Commission) several times and the tenure of its commissioners twice. Although its history dates back to the 1930s, Congress, in 1976, established the Parole Commission as an independent agency within the Department of Justice, with nine commissioners to be appointed by the President with the advice and consent of the Senate for a term of six years. Under the statute, a commissioner can hold over until his successor is nominated and qualified, but may not serve for longer than 12 years. Although Congress enacted a law to abolish the Parole Commission in 1984, it effectively extended, on a temporary basis, the life of the Parole Commission and the terms of offices for an additional five years from the time the sentencing guidelines became effective. This meant that beginning in 1987, the incumbent commissioners, whose terms would have otherwise expired in six years, could serve for an additional five years. With the Parole Commission and the terms of office slated to expire in 1992 per the five-year extension, Congress, again, lengthened the life of the commission and the tenure of the incumbent officers for another five years through 1997. Even though the existence of the commission was extended several times thereafter, Congress, in 1996, when it extended the life of the commission for another five years through 2002, repealed the provision that would have simultaneously extended the terms of the commissioners' offices. This action "reinstituted" the 12-year time limit, meaning that some of the long-standing incumbent officers would not be able to continue serving. Because of the lengthened tenures, a few of the commissioners, who otherwise would have had to be reappointed after their sixth year (assuming they were not staying pursuant to the holdover clause), continued to hold office validly without reappointment or a second confirmation hearing. For example, Commissioner Vincent J. Fechtel Jr. served for a total of 13 years from November 1983 to April 1996.

It is also worth noting that when Congress considered the single 10-year term limit for the FBI Director, other proposed term limitations raised during the Senate debate included a single 10-year term with an additional 5 years, subject to approval by Congress, and a 4-year term with the right to reappoint for additional 4-year terms. It also appears that the original bill ( S. 2106 ) as introduced by Senator Robert C. Byrd in the 93 rd Congress would have permitted the FBI Director to serve no more than two 10-year terms. In the aftermath of J. Edgar Hoover's near 50 years as Director of the FBI and the inherent political sensitivities of the position, Senator Byrd stated that "after much reflection, that 20 years is too long a time for any one man to be Director of the Federal Bureau of Investigation.... [s]o S. 2106 , if it is amended, I believe will erect a valuable check upon the possible abuse of executive power."

Constitutionality of Extending the FBI Director's Term of Office

The constitutionality of extending an officer's fixed term of office, specifically the Director of the FBI, depends on how a proposed extension reads and whether the President will be able to retain plenary authority to remove such officer. It is first necessary to review the appointments framework established by the U.S. Constitution and the accompanying Supreme Court decisions that discuss Congress's ability to place restrictions on the President's ability to remove an officer. Next, these principles are applied to analyze whether there would be any constitutional implications in extending the FBI Director's term of office.

Appointments Clause Framework

The Appointments Clause of the U.S. Constitution states that 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." It has long been recognized that "the power of removal [is] incident to the power of appointment." This maxim was addressed more fully in Myers v. United States , where the Supreme Court addressed the President's summary dismissal of a postmaster from office, in contravention of a statute requiring that the President obtain the advice and consent of the Senate prior to removal. In Myers , the Supreme Court ruled that the President possesses plenary authority to remove presidentially appointed executive officers who have been confirmed by the Senate, and other presidentially appointed executive officers, so long as Congress does not expressly provide otherwise. Clarifying the scope of the appointment power, the Court noted that while Congress can imbue Cabinet officers with the power to appoint inferior officers and place incidental regulations and restrictions on when such department heads can exercise their power of removal, Congress may not involve itself directly in the removal process.

Notwithstanding the seemingly clear limitations on the ability of Congress to interfere with the President's appointment and removal power, the Supreme Court, in Humphrey's Executor v. United States , unanimously upheld a law that restricted the President's ability to remove an agency official. Specifically at issue was a provision of the Federal Trade Commission (FTC) Act, which provided that the President could remove an FTC commissioner only on the basis of inefficiency, neglect of duty, or malfeasance in office. To distinguish the case at hand, the Court held that Myers was limited to "purely executive officers," as "such an officer [i.e., the postmaster] is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is." Thus, the holding in Myers did not reach and could not include officers not in the executive department or those who exercised "no part of the executive power vested by the Constitution in the President." Explaining that the FTC was not an executive body, but rather functioned as a "quasi-legislative or quasi-judicial" agency, the Court ruled that Congress possessed the authority to control the terms of removal for such officers.

This approach to removal shifted in Morrison v. Olson , where the Supreme Court clarified that the proper inquiry regarding removal power questions should focus not on an officer's status as either "purely executive" or "quasi-legislative," or "quasi-judicial," but rather, on whether a removal restriction interferes with the ability of the President to exercise executive power and to perform his constitutional duty. Applying this maxim to the statute at issue, which provided that an independent counsel could only be removed for "good cause" by the Attorney General, the Court found that the independent counsel lacked significant policymaking or administrative authority despite being imbued with the power to perform law enforcement functions. As such, the Court in Morrison determined that removal power over the independent counsel was not essential to the President's successful completion of his constitutional duties.

The Court's decision in Morrison appeared to further weaken the standard delineated in Myers because Morrison essentially established that there are no formal categories of executive officials who may or may not be removed at will. As a result, any inquiry in a removal case where Congress places a restriction on the President's power to remove, such as a given "for cause" removal requirement, will necessarily focus on whether the restriction impermissibly interferes with the President's ability to perform his constitutionally assigned functions.

Extending the Director of the FBI's Term of Office

Accordingly, the principles discussed above establish that the President may remove the Director of the FBI at will, given that the "power of removal [is] incident to the power to remove." Indeed, President Bill Clinton exercised this removal power on July 19, 1993, by firing FBI Director William S. Sessions. In particular, upon receiving a recommendation from Attorney General Janet Reno that Sessions be removed, President Clinton informed Sessions: "I am hereby terminating your service as Director of the Federal Bureau of Investigation, effective immediately." It should also be noted that during Senate consideration of the 1976 measure, Senators Byrd and Hruska emphasized several times that "there is no limitation on the constitutional power of the President to remove the FBI Director from office within the 10-year term. The Director would be subject to dismissal by the President as are all purely executive officers."

Even though the Administration asked Congress to extend the FBI Director's tenure, such congressional action could give rise to constitutional concerns. A court would likely evaluate such a proposal under the principles discussed above, specifically whether such an extension would be seen as a congressional intrusion on the appointments process and whether such action would "impede the President's ability to perform his constitutional duty." A court reviewing a proposed extension may find that such action does not violate the Appointments Clause or impermissibly interfere with the President's ability to perform his constitutionally assigned functions, because the President would still have the plenary authority to remove the Director during the extended two years. Moreover, a court could find that such a proposal would not be constitutionally questionable, given the generally accepted principle that the legislature has the power to "create or abolish [offices], or modify their duties, [and to] shorten or lengthen the term of service."

If, however, the Director's term had an existing statutory "for cause" removal protection, then it is possible that a proposed extension could be viewed as being equivalent to congressional reappointment, and therefore in violation of Appointments Clause and separation of powers principles. Opinions of the Attorneys' General and the Department of Justice's Office of Legal Counsel (OLC), espousing the views of the executive branch, traditionally have concluded as much. With the 1951 Attorney General opinion addressing the Displaced Persons Commission and the 1994 OLC opinion addressing the Parole Commission, the Department of Justice has consistently concluded that the lengthening of an officer's tenure "presents no constitutional difficulties," because nothing in those statutes "requires [the President] to continue the incumbents in office." A 1996 OLC opinion, which summarized its view on the constitutionality of lengthening the tenure of an office, stated,

At the one end is constitutionally harmless legislation that extends the term of an officer who is subject to removal at will. At the other end is legislation … that enacts a lengthy extension to a term of office from which the incumbent may be removed only for cause. Legislation along this continuum must be addressed with a functional analysis. Such legislation does not represent a formal appointment by Congress and, absent a usurpation of the President's appointing authority, such legislation falls within Congress's acknowledged authority—incidental to its power to create, define, and abolish offices—to extend the term of an office. As indicated, constitutional harm follows only from legislation that has the practical effect of frustrating the President's appointing authority or amounts to a congressional appointment.

Although the Department of Justice views extension of a term of office from which the incumbent may be removed only for cause as constitutionally suspect, courts have repeatedly upheld the Bankruptcy Amendments and Federal Judgeship Act of 1984, a law that extended the tenure of bankruptcy judges who can be removed only for cause. The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) in In re: Benny did not distinguish between "at will" versus "for cause" positions in deciding the constitutionality of the act. Rather, without detailed analysis, the Ninth Circuit concluded that "Congress' power to extend prospectively terms of office can be implied from its power to add to the duties of an office other duties that are germane to its original duties." The court found that the extension of a term of office "becomes similar to [a congressional] appointment [only] … when it extends the office for a very long time." In a concurring opinion, Judge Norris disagreed and stated: "I believe the Appointments Clause precludes Congress from extending the terms of the incumbent officeholders. I am simply unable to see any principled distinction between congressional extensions of the terms of incumbents and more traditional forms of congressional appointments" (emphasis in the original). He further disagreed with the majority's distinction between a "short" and "long" extension as prompting a violation of separation of powers principles, noting that "the Supreme Court has implicitly rejected the notion that the Constitution proscribes appointments only if they are 'long' rather than 'short.'" While the holding in this case or the reasoning of Judge Norris could be applied in the future, the 1996 OLC opinion stated that it found the reasoning in Benny unpersuasive and that the doctrine may be limited to its factual context, given that "an enormous number of decisions within the bankruptcy system," might have been put into question had the court reached the opposite conclusion.

The OLC issued an opinion on June 20, 2011, concluding that it would be constitutional for Congress to enact legislation extending the term of the Director of the FBI. It reaffirmed that "[t]he traditional position of the Executive Branch has been that Congress, by extending an incumbent officer's term, does not displace and take over the President's appointment authority, as long as the President remains free to remove the officer at will and make another appointment." The OLC opinion emphasized that "legislation extending a term does not represent a formal appointment by Congress," (quotation omitted) nor is it " functionally the equivalent of a congressional appointment" (emphasis in the original). The opinion also dismissed as speculative any notion that a term-extension legislation violates the Appointments Clause because it may impose some political cost on the President.

Lastly, given the precedent of not formally reappointing an individual whose term of office is to be extended, it is likely that an incumbent Director would not need to be nominated or appointed a second time. While there would be no need for a second confirmation hearing, the Senate, at its discretion, could invite Mueller to answer questions as it has periodically done with various agency officials.