The federal government has shut down, which may have those who have been closely following the Special Counsel’s investigation into 2016 Russian election meddling worried. But as the Justice Department confirmed last week —Mueller’s team will not be affected by a shutdown.
Article I, Section 9 of the Constitution requires Congress to pass appropriations bills in order to draw money from the Department of the Treasury. The so-called Antideficiency Act actuates that provision.
In 1981, the Department of Justice Office of Legal Counsel officially interpreted the Act to mean that employees working in roles funded by yearly budgetary bills couldn’t work or receive pay whenever appropriations lapse. But the interpretations do make some exceptions.
Obviously, federal employees can respond to emergencies, and pretty much all employees who operate in the capacity of supporting “safety of human life” or “the protection of property” continue to work.
Robert Mueller’s team, however, does not even to claim this exception. The Mueller team is not affected by the shutdown for an entirely different reason: Special Counsel investigations are not funded by the regular budgetary or appropriations bills. They are instead funded by a distint“permanent indefinite appropriation,” which was established by the DOJ’s Justice Appropriation Act.
That act blueprints the scheme by which we pay for “investigations and prosecutions by independent counsels.” As such, Mueller is exempt from Trump’s unprecedented shutdown of the federal government. Nobody in Mueller’s team stuck in Treasury purgatory.
This might well have been news to Donald Trump, as so many things seem to be.