FBI Director: Appointment and Tenure
Vivian S. Chu
Legislative Attorney
Henry B. Hogue
Specialist in American National Government
May 30, 2013
Congressional Research Service
7-5700
www.crs.gov
R41850
CRS Report for Congress
Pr
epared for Members and Committees of Congress

FBI Director: Appointment and Tenure

Summary
The Director of the Federal Bureau of Investigation (FBI) is appointed by the President by and
with the advice and consent of the Senate. The statutory basis for the present nomination and
confirmation process was developed in 1968 and 1976, and has been used since the death of J.
Edgar Hoover in 1972. Over this time, six nominations have been confirmed and two have been
withdrawn by the President before confirmation. The position of FBI Director has a fixed 10-year
term, and the officeholder cannot be reappointed, unless Congress acts to allow a second
appointment of the incumbent. There are no statutory conditions on the President’s authority to
remove the FBI Director. One Director has been removed by the President since 1972.
FBI Director Robert S. Mueller III was first confirmed by the Senate on August 2, 2001, with a
term of office that expired in September 2011. In May 2011, President Barack Obama announced
his intention to seek legislation that would extend Mueller’s term of office for two years. On May
26, 2011, Senator Patrick Leahy introduced S. 1103, a bill that would extend the term of the
incumbent Director of the FBI. This bill was amended and passed by the Senate with unanimous
consent on July 21, 2011. On July 25, the House considered the bill under suspension of the rules,
and it was approved by voice vote. President Obama signed the bill into law (P.L. 112-24) the
following day. Director Mueller’s term is due to end in September 2013.
It has been reported that President Obama intends to nominate James Comey, a former Deputy
Attorney General, to succeed Director Muller.
This report first reviews the legislative history surrounding the enactment of the 1968 and 1976
amendments to the appointment of the FBI Director, as well as information on the nominees to
the FBI Directorship since 1972. The report then provides a legal overview of the extension of a
Director’s tenure.
This report will be updated as developments warrant.

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Contents
Introduction ...................................................................................................................................... 1
Overview .......................................................................................................................................... 1
FBI Nominations and Confirmations, 1973–Present ....................................................................... 4
Hearings ........................................................................................................................................... 6
Reports ............................................................................................................................................. 7

Tables
Table 1. FBI Director Nominations and Confirmations, 1973–2012 ............................................... 3

Appendixes
Appendix A. Reappointment of Robert S. Mueller III ..................................................................... 8
Appendix B. Legal Overview of Extending a Term of Office ....................................................... 11

Contacts
Author Contact Information........................................................................................................... 17

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Introduction
The term of the current Director of the Federal Bureau of Investigation (FBI), Robert S. Mueller,
is due to end in September 2013. It has been widely reported that President Barack Obama
intends to nominate James Comey, a former Deputy Attorney General during the George W. Bush
Administration, as the next Director of the FBI.1 This report provides an overview of the
development of the process for appointing the FBI Director, briefly discusses the history of
nominations to this position, identifies related congressional hearing records and reports, and, in
two appendixes, provides background and legal analysis regarding a 2011 statute that allowed
Mueller 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.2 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.3
Prior to the implementation of the current nomination and confirmation process, J. Edgar Hoover
was Director of the FBI for nearly 48 years.4 He held the position from May 10, 1924, until his
death on May 2, 1972.5 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 1968.6 The proposal for a presidentially
appointed Director had been introduced and passed in the Senate twice previously,7 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,

1 Michael S. Schmidt, “Ex-Bush Official Said to be Choice for Chief of F.B.I.” New York Times, May 30, 2013, p.
A1.).
2 28 U.S.C. §532 note.
3 See also CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure,
by Elizabeth Rybicki.
4 At its beginning in 1908, the FBI was headed by a single individual known as the “Chief.” During the term of William
Flynn in the 1920s, the title to the position was changed to the “Director.” The Director of the FBI had been appointed
by the Attorney General. This was codified in statute in 1966. See 28 U.S.C. §532; P.L. 89-554 §4(c) (1966) (“The
Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director … is the head of the
Federal Bureau of Investigation.”).
5 For further information on the history and development on the FBI, see the FBI history web page, available at
http://www.fbi.gov/gbihistory.htm.
6 P.L. 90-351, §101; 82 Stat. 197, 236 (1968). The statute did not apply to Hoover, the incumbent at that time, but was
worded to apply to future Directors, beginning with his successor.
7 S. 603, 88th Cong., 1st sess. (1963) and S. 313, 89th Cong., 1st sess. (1965).
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and the need for Congress to strengthen its oversight role in the wake of his departure.8 In 1976,
the 10-year limit for any one incumbent was added as part of the Crime Control Act of 1976.9
This provision also prohibits the reappointment of an incumbent. As with the previous measure,
the Senate had introduced and passed this provision twice previously,10 but it had failed to pass
the House.
Since 1972, six nominations for FBI Director have been confirmed, and two other nominations
have been withdrawn. Due to legislation allowing for the reappointment of a specific incumbent,
two of the six confirmed nominations were of the same person, Robert S. Mueller III. Each of
these nominations is shown in Table 1 and discussed below.11

8 See Congressional Record, vol. 114, May 14, 1968, at 13181-13184.
9 P.L. 94-503, §203; 90 Stat. 2407, 2427 (1976).
10 S. 2106, 93rd Cong., 1st sess. (1974) and S. 1172, 94th Cong., 1st sess. (1975).
11 This information does not include acting Directors. The FBI’s list of its Directors and acting Directors can be found
on the Internet at http://www.fbi.gov/libref/directors/directmain.htm.
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Table 1. FBI Director Nominations and Confirmations, 1973–2012
Nominating
Date of
Nominee
President
Nominationa Committee
Actionb Final
Dispositionc Elapsed
Timed
L. Patrick Gray III
Richard Nixon
Feb. 21, 1973
Hearings: Feb. 28,
Nomination withdrawn by
1973; Mar. 1, 6, 7, 9,
the President. Message
12, 20, 21, 22, 1973.
received Apr. 17, 1973.
Clarence M. Kel ey
Richard Nixon
June 8, 1973
Hearings: June 19, 20,
Confirmed (96-0): June
19 days
25, 1973. Approval and 27, 1973.
favorable report to the
Senate on June 26,
Sworn-in: July, 9, 1973
1973.
Frank M. Johnson
Jimmy Carter
Sept. 30, 1977

Nomination withdrawn by
the President. Message
received Dec. 15, 1977.
Wil iam H. Webster
Jimmy Carter
Jan. 20, 1978
Hearings: Jan. 30, 31,
Confirmed (without
20 days
1978. Approval and
objection): Feb. 9, 1978.
favorable report to the
Senate on Feb. 7, 1978. Sworn-in: Feb. 23, 1978.
Wil iam S. Sessions
Ronald Reagan
Sept. 9, 1987
Hearing: Sept. 9, 1987.
Confirmed (90-0): Sept.
16 days
Approval and favorable 25, 1987.
report to the Senate:
Sept. 15, 1987.
Sworn-in: Nov. 2, 1987.
Louis J. Freeh
William Clinton
July 20, 1993
Hearing: July 29, 1993.
Confirmed (unanimous
17 days
Approval and favorable consent): Aug. 6, 1993.
report to the Senate
on Aug. 3, 1993.
Sworn-in: Sept. 1, 1993.
Robert S. Mueller III
George W. Bush
July 18, 2001
Hearing: July 30, 2001.
Confirmed (98-0): Aug. 2,
15 days
Unanimous approval
2001.
and favorable report
to the Senate on Aug.
2, 2001.
Robert S. Muel er III
Barack Obama
July 26, 2011
Nomination was
Confirmed (100-0): July
1 day
placed on the
27, 2011.
Executive Calendar
upon its receipt
pursuant to a
unanimous consent
agreement of July 21,
2011.
Sources:
a. Date nomination was received by the Senate as indicated in the Journal of Executive Proceedings of the Senate
or the Congressional Record.
b. Some hearings information provided in this column was obtained from the respective hearings documents
listed in this report. Additional committee action information is taken from committee reports, the Journal
of Executive Proceedings of the Senate
, and the Congressional Record.
c. Information provided in this column was obtained from the Journal of Executive Proceedings of the Senate, the
Congressional Record, and the Weekly Compilation of Presidential Documents.
d. Includes al days from nomination to confirmation.
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FBI Nominations and Confirmations, 1973–Present
L. Patrick Gray III. On the day after the death of long-time Director J. Edgar Hoover, L. Patrick
Gray was appointed acting Director.12 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,13
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.14 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.15 The Senate Committee on the Judiciary
approved the nomination unanimously the following day. He was sworn in by the President on
July 9, 1973.16 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, 1977.17
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, 1978.18 He served as Director of the FBI until he was appointed as
Director of the Central Intelligence Agency (CIA) in May 1987.

12 U.S. President Nixon, “Acting Director of the Federal Bureau of Investigation,” Weekly Compilation of Presidential
Documents
, vol. 8, May 8, 1972, at 819-820.
13 See, e.g., Sen. Roman L. Hruska, “The Nomination of L. Patrick Gray to be Director of the FBI,” remarks in the
Senate, Congressional Record, vol. 119, February 21, 1973, at 4863; Sen. Lowell P. Weicker Jr., “The Nomination of
L. Patrick Gray III,” remarks in the Senate, Congressional Record, vol. 119, March 20, 1973, at 8685.
14 See, e.g., Sen. Robert C. Byrd, “Political Partisanship Should Have No Place in the FBI,” remarks in the Senate,
Congressional Record, vol. 119, February 19, 1973, at 4349; Sen. Robert C. Byrd, “Executive Privilege and Mr. Gray,”
remarks in the Senate, Congressional Record, vol. 119, March 19, 1973, at 8352.
15 See Mary Wilson Cohn, ed., Cong. Quarterly Almanac: 95th Cong., 1st sess. ... 1977 (Washington: Congressional
Quarterly, 1977) at 376-77.
16 U.S. President Nixon, “Director of the Federal Bureau of Investigation,” Weekly Compilation of Presidential
Documents
, vol. 9, July 16, 1973, at 893-894.
17 Carolyn Mathiasen, ed., Cong. Quarterly Almanac: 95th Cong., 1st sess. ... 1977 (Washington: Congressional
Quarterly, 1977) at 568.
18 U.S. President Carter, “Director of the Federal Bureau of Investigation,” Weekly Compilation of Presidential
(continued...)
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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, 1987.19
Sessions has been the only FBI Director removed from office to date. 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.20 Some Members of Congress
questioned the dismissal,21 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, 1993,22 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
98-0.23 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.24 Under President George Bush, Mueller was in charge of
the Department of Justice’s criminal division during the investigation of the bombing of Pam Am
Flight 103 and the prosecution of Panamanian leader Manuel Noriega.25
To date, Robert S. Mueller III is the only post-Hoover FBI Director to be appointed to a second
term. Unlike his first, 10- year term, his second term is for 2 years. Upon enactment of the law

(...continued)
Documents, vol. 14, February 27, 1978, at 396-97.
19 U.S. President Reagan, “Federal Bureau of Investigation,” Weekly Compilation of Presidential Documents, vol. 23,
November 9, 1987, at 1261-1263.
20 U.S. President Clinton, “Remarks on the Dismissal of FBI Director William Sessions and an Exchange With
Reporters,” Weekly Compilation of Presidential Documents, vol. 29, July 26, 1993, at 1373-1374.
21 On the floor of the Senate, Senator Orrin G. Hatch praised Sessions’s service and characterized the Administration’s
reasons for removing the Director as “vague.” Sen. Orrin G. Hatch, remarks in the Senate, Congressional Record
Quarterly Almanac: 103rd Cong., 1st sess. ... 1993
(Washington: Congressional Quarterly, 1994) at 309.
22 U.S. President Clinton, “Remarks on the Swearing-In of Federal Bureau of Investigation Director Louis Freeh,”
Weekly Compilation of Presidential Documents, vol. 29, September 6, 1993, at 1680-1862.
23 “Robert S. Mueller III to be Director of the Federal Bureau of Investigation,” Congressional Record, daily edition,
vol. 147, August 2, 2001, at S8680-S8691.
24 U.S. President G. W. Bush, “Remarks on the Nomination of Robert S. Mueller to be Director of the Federal Bureau
of Investigation,” Weekly Compilation of Presidential Documents, vol. 37, July 9, 2001, at 1012-1013.
25 Peter Slevin, “Nominee Vows to Restore Faith in FBI,” Washington Post, July 31, 2001, at A4.
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that extended the term of the incumbent Director for an additional two years,26 Mueller was
nominated to his second term on July 26, 2011, and he was confirmed the following day by a vote
of 100-0. This two-year term expires 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.
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. 93rd Cong., 1st 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 Director, Federal Bureau of
Investigation. Hearing. 93rd Cong., 1st sess., April 5, 1973. Unpublished.
—. Nomination of Clarence M. Kelley to be Director of the Federal Bureau of Investigation.
Hearings. 93rd Cong., 1st 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. 95th Cong., 2nd 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. 100th Cong., 1st 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. 103rd Cong., 1st 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. 107th Cong., 1st sess., July 30-31, 2001. S.Hrg.
107-514. Washington: GPO, 2002.
—. Subcommittee on FBI Oversight. Ten-Year Term for FBI Director. Hearing. 93rd Cong., 2nd
sess., March 18, 1974. Washington: GPO, 1974.

26 P.L. 112-24 (2011).
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Reports
U.S. Congress. Senate. Committee on the Judiciary. Ten-Year Term for FBI Director. Report to
accompany S. 2106. 93rd Cong., 2nd sess. S.Rpt. 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. 95th Cong., 2nd 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. 100th Cong., 1st 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. 112th Cong., 1st sess., June 21, 2011. S.Rept. 112-23.
Washington: GPO, 2011.
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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
2011.27 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.28
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.29 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.30 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.31 The committee voted to report
favorably the bill, as amended, and issued an accompanying report on June 21, 2011.32 A few

27 According to the FBI website, Mueller “became the sixth Director of the Federal Bureau of Investigation on
September 4, 2001” (http://www.fbi.gov/about-us/executives/director). A White House statement released on May 12,
2011 indicated that Mueller’s term would expire on September 4, 2011 (http://www.whitehouse.gov/the-press-office/
2011/05/12/president-obama-proposes-extending-term-fbi-director-robert-mueller). More recently, however, the
Obama Administration reportedly determined that “Mueller’s last day is likely to be Aug. 2, because President George
W. Bush signed his appointment on Aug. 3, 2001” (Charlie Savage, “Republicans Hold Up Vote on Extension of F.B.I.
Term,” New York Times, July 16, 2011, at A13).
28 See White House Press Release, President Obama Proposes Extending Term of FBI Director Robert Mueller, May
12, 2011, available at, http://www.whitehouse.gov/the-press-office/2011/05/12/president-obama-proposes-extending-
term-fbi-director-robert-mueller.
29 S. 1103 (112th Congress).
30 Information concerning this hearing, which was entitled “The President’s Request to Extend the Service of Director
Robert Mueller of the FBI Until 2013,” may be found on the committee’s website, available at,
http://judiciary.senate.gov/hearings/hearing.cfm?id=e655f9e2809e5476862f735da16dc8fb. The description presented
here was drawn from a transcript of the hearing created by CQ.com.
31 The Coburn amendment was rejected by an 7-11 roll call vote.
32 U.S. Congress, Senate Committee on the Judiciary, A Bill to Extend the Term of the Incumbent Director of the
Federal Bureau of Investigation
, report to accompany S. 1103, 112th Cong., 1st sess., June 21, 2011, S.Rept. 112-23
(Washington: GPO, 2011). The committee voted in favor of the bill by an 11-7 roll call vote.
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days later, at the request of Senator Coburn, minority views on the bill were printed in the
Congressional Record by unanimous consent.33
Subsequent news reports indicated that the Administration had agreed to the Coburn approach to
renominate the Director for an extra two-year period.34 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.”35
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.”36
Although reportedly subject of a hold that was eventually lifted,37 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.38
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).

33 “Minority Views—S. 1103,” remarks Sen. Tom Coburn in the Senate, Congressional Record, vol. 157, part 91 (June
23, 2011), at S4069-S4070.
34 Charlie Savage, “Republicans Hold Up Vote on Extension of F.B.I. Term,” New York Times, July 16, 2011, at A13.
35 “Extending Service of FBI Director Robert Mueller,” remarks Sen. Patrick J. Leahy in the Senate, Congressional
Record
, vol. 157, part 107 (July 18, 2011), at S4632.
36 Id.
37 Seth Stern, “Kentucky’s Paul Holds Up Effort to Extend FBI Director’s Term; Askes for Meeting,” CQ Today
Online News
, July 18, 2011, available by subscription at, http://www.cq.com/doc/news-3910161?wr=
bGFldXRDRDVoeG83OXVsblQ2eTB1dw. See also Sen. Patrick J. Leahy, “Extending Service of FBI Director Robert
Mueller,” remarks in the Senate, Congressional Record, vol. 157, part 107 (July 18, 2011), at S4631-S4633. See also
Seth Stern, “Bill to Extend Mueller’s Term as FBI Chief Heads to House After Passing in Senate,” CQ Today Online
News
, July 21, 2011, available at, http://www.cq.com/doc/news-3913526.
38 “FBI Director Extension Act, 2011,” remarks Sen. Harry Reid in the Senate, Congressional Record, vol. 157, part
110 (July 21, 2011), at S4780.
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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 100-0.39

39 “Nomination of Robert S. Mueller, III to be Director of the Federal Bureau of Investigation,” Senate debate,
Congressional Record, daily edition, vol. 157, part 114 (July 27, 2011), pp. S4937-S4948.
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Appendix B. Legal Overview of Extending
a Term of Office

This section 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, 1951.40 Prior to June 30,
however, Congress amended the act to extend the terms of the commissioners, and that of the
commission, through August 31, 1952.41 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,
1951.42 Citing prior incidents where Congress extended terms of offices for certain
commissions,43 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.44 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.45 This meant that

40 P.L. 80-774; 62 Stat. 1012 (1948).
41 P.L. 81-555; 64 Stat. 225 (1950) (“Section 8 of the Displaced Persons Act of 1948 is amended by striking out the
date ‘June 30, 1951’ in the first sentence and inserting in lieu thereof the date ‘August 31, 1952.’”).
42 41 Op. Att’y Gen. 88 (1951) (released for publication January 30, 1958).
43 Id. at 90-91. The opinion noted the extension for incumbent Directors of the Reconstruction Finance Corporation
from January 22, 1950, to June 30, 1950. See P.L. 72-2; 47 Stat. 5 (1932) and P.L. 80-548; 62 Stat. 262 (1948). It also
cited the extension for commissioners of the Atomic Energy Commission from August 1, 1948, to June 30, 1950. See
P.L. 79-585; 60 Stat. 756 (1946) and P.L. 80-899; 62 Stat. 1259 (1948). Notably, the Atomic Energy Commission was
formally abolished in 1974 by the Energy Reorganization Act of 1974. P.L. 93-438; 88 Stat. 1233 (1974). The Attorney
General’s opinion stated that in both of these extensions the incumbents continued to serve and that no new
nominations were submitted to the Senate.
44 P.L. 94-233; 90 Stat. 219 (1976), codified at 18 U.S.C. §4202 (repealed).
45 P.L. 98-473; 98 Stat. 2032 (1984) (Section 235(b)(2) “Notwithstanding the provisions of section 4204 of title 18,
United States Code, as in effect on the day before the effective date of this Act, the term of office of a Commissioner
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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 1997.46
Even though the existence of the commission was extended several times thereafter,47 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.48 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.49 For example, Commissioner Vincent J.
Fechtel Jr. served for a total of 13 years from November 1983 to April 1996.50
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,51 and a 4-year term with
the right to reappoint for additional 4-year terms.52 It also appears that the original bill (S. 2106)
as introduced by Senator Robert C. Byrd in the 93rd Congress would have permitted the FBI
Director to serve no more than two 10-year terms.53 In the aftermath of J. Edgar Hoover’s near 50
years as Director of the FBI and the inherent political sensitivities of the position,54 Senator Byrd
stated that “after much reflection, that 20 years is too long a time for any one man to be Director

(...continued)
who is in office on the effective date is extended to the end of the five-year period after the effective date of this Act.”).
46 P.L. 101-650; 104 Stat. 5115 (1990) (Section 316 “For the purposes of section 235(b) of P.L. 98-473 … each
reference in such section to ‘five years’ or a ‘five-year period’ shall be deemed a reference to ‘ten years’ or a ‘ten-year
period’, respectively.”).
47 Congress passed the Parole Commission Phaseout Act of 1996, which extended the life of the Commission for
another five years, from 1997-2002. P.L. 104-232; 110 Stat. 3055 (1996). In 2002, Congress passed the 21st century
Department of Justice Authorization Act of 2002 to extend the life of the commission for another three years. P.L. 107-
273; 116 Stat. 182, 195 (2002). In 2005, Congress passed the U.S. Parole Commission Extension Authority Act to
extend the life of the commission another three years from 2005 to 2008. P.L. 109-76; 119 Stat. 2035 (2005). Most
recently, Congress passed the U.S. Parole Commission Extension Act of 2008, which extended the commission through
2011. P.L. 110-312; 122 Stat. 3013 (2008).
48 P.L. 104-232; 110 Stat. 3055, 3056 (1996) (Section 4 “Section 235(b)(2) of the Sentencing Reform Act of 1984 (98
Stat. 2032) is repealed.”).
49 For example, two longstanding commissioners were Victor M.F. Reyes, who served from December 1982 through
December 1992, and Jasper R. Clay Jr., who served from October 1984 through October 1996. Each commissioner was
only nominated and appointed one time.
50 USDOJ: USPC Our History, available at http://www.justice.gov/uspc/history.htm.
51 “Ten Year Term for FBI Director,” remarks Sen. Roman L. Hruska vol. 120 Congressional Record, 34085 (October
7, 1974).
52 “Ten Year Term for FBI Director,” remarks Senator William L. Scott vol. 120 Congressional Record, 34086
(October 7, 1974). Senator Scott offered the four-year term proposal as an amendment, which was voted on and not
adopted by the Senate. Senator William Brock also mentioned, but did not offer as an amendment, his proposal of a
six-year term subject to the possibility of reappointment.
53 “Ten Year Term for FBI Director,” remarks Senator Robert C. Byrd vol. 120 Congressional Record, 34084 (October
7, 1974).
54 “If there is one thing that must not happen again in this country, it would be the transition of the FBI into a political
police force or into a politicized organization in any fashion,” remarks Senator Robert C. Byrd vol. 120 Congressional
Record
, 34084 (October 7, 1974).
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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.”55
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.”56 It has long been recognized that “the power of removal [is] incident to the power of
appointment.”57 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.58 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,59 and other presidentially appointed executive officers, so long as Congress does not
expressly provide otherwise.60 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.61

55 “Ten Year Term for FBI Director,” remarks Senator Robert C. Byrd vol. 120 Congressional Record, 34084 (October
7, 1974).
56 U.S. Const., art. II, §2, cl. 2.
57 Ex Parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).
58 Myers v. United States, 272 U.S. 52, 106-107 (1926).
59 Id. at 176.
60 Id. at 161. In at least one instance, the court has applied “for cause” removal protection to a statute that did not
otherwise provide for such protection. The Securities and Exchanges Commission’s enabling legislation is silent as to
the removal of commissioners; however, reviewing courts have held that commissioners may not be summarily
removed from office. See SEC v. Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir. 1988). In Blinder, while
the court noted that the Chairman of the SEC serves at pleasure of the President and therefore may be removed at will,
it determined that commissioners may be removed only for inefficiency, neglect of duty, or malfeasance in office. Id.
Given that the conclusion in Blinder is generally seen to be applicable only to multi-member boards or commissions
whose purpose is to be independent from the executive branch, it is unlikely that any “for cause” removal protection
could be read as applying to the statute establishing the time and term restriction on the FBI Director. See also
President Clinton dismissal of FBI Director William Session, infra.
61 Myers, 272 U.S. at 161.
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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.62 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.63 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.”64 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.”65 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.66
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.67 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.68
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.69

62 Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
63 Id. at 619-620.
64 Id. at 627.
65 Id. at 627-628.
66 Id. at 628-629. The duties of the commission included conducting investigations and making pertinent reports to
Congress, as well as acting as “a master in chancery under rules prescribed by the court.” Id. Accordingly, the Supreme
Court ruled that the legislative and judicial functions envisioned by the statute necessarily placed the FTC outside the
scope of complete executive control. Id.
67 Morrison v. Olson, 487 U.S. 654 (1988).
68 Id. at 693-696.
69 Id. at 693-96. Although the power to remove officers is generally vested in the Executive Branch, Congress still
retains the ability to remove a validly appointed executive officer if it invokes its impeachment power. See U.S. Const.,
art. I, §2, cl. 5 (“The House of Representatives ... shall have the sole Power of Impeachment”); U.S. Const., art. I, §3,
cl. 6 (“The Senate shall have the sole Power to try all Impeachments”). But cf. Saikrishna Prakash, Removal and Tenure
in Office
, 92 Va. L. Rev. 1779, 1785-1814 (2006) (relying on textual and structural arguments, Prakash argues that
Congress has the power to remove because the Constitution’s Necessary and Proper Clause “makes Congress the
creator, provider, and terminator of other offices. Under this powerful authority, Congress can enact removal statutes of
(continued...)
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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.”70
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.”71 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.”72
Even though the Administration asked Congress to extend the FBI Director’s tenure, such
congressional action could give rise to constitutional concerns.73 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.”74 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.”75
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

(...continued)
various sorts.”).
70 Ex Parte Hennen, 38 U.S. (13 Pet.) at 259.
71 See Michael Isikoff, Ruth Marcus, Clinton Fires Sessions as FBI Director, Washington Post, at A1 (July 20, 1993);
Text of Letter From Clinton to Sessions, Washington Post, at A11(July 20, 1993). See also “Constitutionality of
Legislation Extending the Term of the FBI Director,” 35 Op. Off. Legal Counsel __ , at 3 (June 20, 2011) (citing
Memorandum for Stuart M. Gerson, Acting Attorney General, from Daniel L. Koffsky, Acting Assistant Attorney
Gneeral, Office of Legal Counsel, Re: Removal of the Director of the Federal Bureau of Investigation (Jan. 26, 1993)).
72 “Ten Year Term for FBI Director,” remarks Sen. Robert C. Byrd vol. 120 Congressional Record, 34083 (October 7,
1974). See also “[T]he record should be made clear that the stability which we are attempting with this legislation will
not interfere with the Presidential power of removal. … Should the President seek to remove a Director of the FBI, and
executive officer, prior to the expiration of the 10-year term, he would be free to do so,” remarks Sen. Roman L.
Hruska vol. 120 Congressional Record, 34086 (October 7, 1974).
73 The Senate Committee on the Judiciary Report acknowledged that some constitutional concerns were raised by some
Members and witnesses during the June 8, 2011 hearing. Concerns included that S. 1103 is unconstitutional
notwithstanding the President’s authority to independently remove the Director and the potential for protracted
litigation challenging the constitutionality of the legislation. See “Minority Views—S. 1103,” remarks Sen. Tom
Coburn in the Senate, Congressional Record, vol. 157, part 91 (June 23, 2011), at S4069-S4070.
74 Morrison, 487 U.S. at 691.
75 Crenshaw v. United States, 134 U.S. 99, 106 (citing Newton v. Commissioners, 100 U.S. 548, 557-58).
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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.”76 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.77
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,78 courts have repeatedly
upheld the Bankruptcy Amendments and Federal Judgeship Act of 1984,79 a law that extended the
tenure of bankruptcy judges who can be removed only for cause.80 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.”81 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.”82 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).83 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

76 41 Op. Att’y Gen. 88 (1951) (released for publication January 30, 1958). In 1994, the OLC addressed the second
five-year extension of the parole commissioners’ tenure and explicitly disavowed an earlier 1987 opinion, which
viewed the first extension of the Parole commissioners’ terms of office as unconstitutional, finding it in contradiction
with its 1951 opinion. 18 Op. Off. Legal Counsel 166, 167 (1994) (citing 11 Op. Off. Legal Counsel 135 (1987)). It
stated that its 1987 opinion made “no effort to explain how legislation extending the term of an officer who serves at
will impinges on the power of appointment, and we can conceive of no credible argument that an infringement rising to
the level of a constitutional violation may result from such legislation.” 18 Op. Off. Legal Counsel at 168 n. 3.
77 20 Op. Off. Legal Counsel 156 (1996).
78 Id. at 154-55.
79 P.L. 98-353; 98 Stat. 333 (1984), codified at 28 U.S.C. §152.
80 In re: Benny, 812 F.2d 1133 (9th Cir. 1987). See also In re: Investment Bankers, 4 F.3d 1556, 1562 (10th Cir. 1993),
cert. denied 510 U.S. 1114 (1994); In re: Koerner, 800 F.2d 1358, 1362-67 (5th Cir. 1986).
81 In re: Benny, 812 F.2d at 1141 (citing Shoemaker v. United States, 147 U.S. 282, 300-01 (1893)).
82 Id.
83 Id. at 1142-43 (Norris, J., concurring).
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rejected the notion that the Constitution proscribes appointments only if they are ‘long’ rather
than ‘short.’”84 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.85
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.”86 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).87 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.88 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.

Author Contact Information

Vivian S. Chu
Henry B. Hogue
Legislative Attorney
Specialist in American National Government
vchu@crs.loc.gov, 7-4576
hhogue@crs.loc.gov, 7-0642



84 Id. at 1145-46. (“In Buckley [v. Valeo, 424 U.S. 1 (1976)] the Court considered the constitutionality of legislative
appointments for terms ranging between six months to six years and, without making any distinction between ‘short’
and ‘long’ appointments, the Court declared unconstitutional all legislative appointments of officers of the United
States.”).
85 20 Op. Off. Legal Counsel at 155 n.90.
86 “Constitutionality of Legislation Extending the Term of the FBI Director,” 35 Op. Off. Legal Counsel __ , at 2 (June
20, 2011).
87 Id. at 5. The OLC opinion further commented that “If the extension of a term were to preclude the President from
making an appointment that he otherwise would have the power make, Congress would in effect have displaced the
President and itself exercised the appointment power. We believe that such a displacement can take place when
Congress extends the term of a tenure-protected officer.” Id.
88 Consideration, however, should be given to the wording of any such measure to extend a term of office so as to avoid
any construction that could give rise to the aforementioned constitutional issues.
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