(Bloomberg) -- A former aide to Trump adviser Roger Stone is trying to fight a grand jury subpoena issued as part of Robert Mueller’s investigation into Russian election meddling, arguing the probe is unconstitutional, according to his lawyer.
Andrew Miller, who did administrative work for Stone over the years, filed a sealed motion Thursday to have the subpoena thrown out, said Paul Kamenar, Miller’s lawyer. Miller is due to testify on Friday morning before a grand jury in Washington where he plans to refuse to answer questions, Kamenar said.
The challenge is the first made public by a witness refusing to answer Mueller’s questions and is probably a long shot, although it could have a broad impact on the investigation if successful.
Miller’s lawyer argued in the motion that Mueller isn’t a constitutionally appointed officer of the U.S. because his position wasn’t created by Congress nor was he confirmed by the Senate, as are U.S. attorneys. Mueller was appointed last year by Deputy Attorney General Rod Rosenstein, who directly supervises his investigation, under a Justice Department regulation.
“Under our Constitution you can’t have people running on their own without any accountability to the executive branch or the body that has appointed you," said Kamenar.“It looks like there’s some control by Rosenstein, but if you look at Rosenstein’s guidelines, they don’t say much about what Mueller can or can’t do.”
Trump’s former campaign manager Paul Manafort, who has been indicted by Mueller on charges of money laundering and illegal lobbying, tried a similar tactic but was rebuffed by two separate federal judges.
Mueller’s office declined to comment.
Mueller has spent time over the past month focusing on Stone, who has had a decades-long relationship with Trump. Mueller issued subpoenas last month to John Kakanis, a former driver for Stone, and Jason Sullivan, who did social media and administrative work for a political action committee run by Stone in July and August of 2016. Miller’s subpoena was also issued within the last month.
Miller, who runs a St. Louis house-painting business, hasn’t worked for Stone for three years, according to a person familiar with the matter, except for one week of the Republican National Convention, when he came in to coordinate Stone’s schedule, the person said.
The challenge is being funded by the National Legal and Policy Center, a conservative nonprofit. The group’s chairman, Peter Flaherty, said Miller was an ideal test case for their argument because he is on the periphery of the investigation.
“If you look at Mueller and his unrestrained probe, this is exactly what the founders feared,” Flaherty said. “Andrew underscores that point nicely because he wasn’t a major player in this yet he has spent a lot on legal fees” and has made repeated trips to Washington.
The argument over Mueller’s constitutional authority has been getting growing attention over the past month among conservative legal experts. Other legal analysts have argued they are over-interpreting the Constitution and making unproven assumptions about Mueller’s authority.
©2018 Bloomberg L.P.