U.S. Appeals Court Rejects Challenge to Mueller’s Authority

(Bloomberg) -- Robert Mueller has defeated the first U.S. appeals court-level challenge to the lawfulness of his May 2017 appointment as special counsel.

A three-judge panel in Washington on Tuesday unanimously rejected a salvo of legal arguments from Andrew Miller, a Roger Stone ally who spurned Mueller’s grand jury subpoena seeking his testimony last year in favor of a court fight over the special counsel’s legitimacy.

The ruling leaves intact a trial court order holding Miller in contempt for his failure to appear before the grand jury.

Miller’s attorney, Paul Kamenar, told the court in November that Mueller was given so much power that his appointment should have been made by the president and confirmed by the U.S. Senate.

Deputy Attorney General Rod Rosenstein lacked authority to appoint Mueller, he said. Even though then-U.S. Attorney General Jeff Sessions recused himself from the investigation into potential collusion between President Donald Trump’s 2016 election campaign and Russia, Sessions remained head of the Justice Department, Kamenar also argued.

Had Miller prevailed, the clash could have undermined cases prosecuted by the Special Counsel’s office including the convictions of Trump’s onetime campaign chairman, Paul Manafort and former National Security Adviser Michael Flynn.

Writing for the panel, U.S. Circuit Court Judge Judith Wilson Rogers said in the opinion that Mueller was a so-called inferior officer under the law because he was subject to oversight by an executive branch officer who was appointed with Senate advice and consent and who could terminate the appointment at any time. Under the law, Sessions’s recusal vested that power in Rosenstein, the judge said.

“We are disappointed with the decision and will be considering future legal action, whether before the full Court of Appeals or the Supreme Court,” Kamenar said in a statement. “The fact that the court took over three months to decide this appeal after oral argument, compared to the three days it took in December to decide another challenge to a Mueller subpoena issued to an unnamed foreign corporation, demonstrates that this was a serious and substantial challenge.”

The foreign corporation case is before the U.S. Supreme Court, which hasn’t yet decided whether to review it.

Peter Carr, a spokesman for Mueller, declined to comment on the court’s decision or whether Miller’s testimony is still sought by the special counsel’s office.

The case is In Re Grand Jury Investigation, 18-3052, U.S. Court of Appeals, District of Columbia Circuit (Washington).

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