Constitutional Law

DC Circuit rejects challenge to Robert Mueller's appointment as special counsel

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Special counsel Robert Mueller.

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected on Tuesday a challenge to the appointment of special counsel Robert Mueller.

The D.C. Circuit ruled in a challenge by Roger Stone aide Andrew Miller, report the National Law Journal, the Washington Post and Politico. It was the first appellate level opinion to uphold the special counsel’s authority.

Miller had challenged Mueller’s appointment when appealing a civil contempt order imposed for refusing to testify before a grand jury in the special counsel probe. The appeals court upheld the contempt order along with the special counsel appointment.

Deputy Attorney General Rod Rosenstein had appointed Mueller as special counsel after then-Attorney General Jeff Sessions recused himself from any investigations of the 2016 presidential campaign. Rosenstein cited his power as “acting attorney general” to make the appointment under department regulations.

Miller had argued that the special counsel is a “principal officer” under the appointments clause who should have been nominated by the president and confirmed by the Senate. Miller also contended that Congress didn’t authorize the appointment by law, and Rosenstein was not the acting attorney general with authority to make the appointment.

Circuit Judge Judith Rogers wrote the panel opinion rejecting those arguments.

Mueller is an inferior officer rather than a principal officer under the appointments clause because his office was created by a regulation, and his appointment can be revoked, Rogers wrote. The appointments clause authorizes the appointment of inferior officers by department heads.

Congress did authorize the appointment under a statute giving the attorney general the power to appoint subordinate officers, Rogers said. And “the statutory and regulatory scheme demonstrate” that Rosenstein was a department head when he appointed Mueller, she said.

Miller’s lawyer is Paul Kamenar. “We are disappointed with the decision and will be considering further legal action, whether before the full court of appeals or the Supreme Court,” Kamenar told Politico.

Stone, an adviser to President Donald Trump, has been accused of making false statements to a House committee and trying to persuade a witness to provide false testimony to obstruct investigations of Russian influence in the 2016 presidential election.

Stone told Politico that Miller is a house painter who handled only menial duties for him. Kamenar told the Washington Post that Miller handled Stone’s website and administrative tasks.

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