Roger Stone associate Andrew Miller is challenging Special Counsel Robert Mueller by fighting a subpoena, and the case went to court Thursday amid the controversial replacement of Attorney General Jeff Sessions with Trump loyalist Matthew Whitaker. The DOJ shakeup could impact how the court interprets Mueller's authority.
CNN:
Judge Karen LeCraft Henderson instructed attorneys from both sides to argue their case as if the hearing were occurring 24 hours earlier, before "the events of yesterday afternoon," a veiled reference to President Donald Trump's decision to fire Attorney General Jeff Sessions on Wednesday.
Henderson, appointed to this court by President George H.W. Bush, said the three-judge panel would likely ask the lawyers to file new briefs adjusting their arguments to reflect the news.
The Justice Department shakeup affects the Russia investigation because acting Attorney General Matthew Whitaker has assumed the role of overseeing Mueller. Whitaker has previously bashed Mueller in public comments, raising concerns that he might now move to shut down or neuter the probe.
At one point during Thursday's hearing, prosecutor Michael Dreeben was asked whether Mueller's overseer could change or rescind the May 2017 order that appointed the special counsel.
Dreeben acknowledged that Mueller's boss had the power to make those changes. The line of questioning seemed to lay out a road map that Whitaker could follow to fire Mueller, though nobody explicitly stated that in the courtroom or mentioned Whitaker by name.
Miller's lawyer Paul Kamenar, speaking to reporters outside the courtroom, was more direct.
Whitaker "can either revoke the regulations altogether or amend the order ... and therefore make Mueller an at-will prosecutor ... meaning he can be fired without cause," Kamenar said. "And we think that that is the way under the Constitution it should be done for accountability."
In a discussion during the hearing about Mueller's supervision, Judge Judith Rogers noted that "what may be inappropriate to one deputy attorney general might not be inappropriate to another." The comments from the Clinton appointee were a nod to the reality that a new boss for Mueller could reach very different conclusions about whether he was running a fair investigation.
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For his part, Dreeben pointed to a series of court decisions and urged the appeals panel to "take heed of precedents" and fully uphold Mueller's powers. Before Thursday's hearing, four district-level federal judges had upheld Mueller's appointment and constitutional authority.
Dreeben also pushed back on the notion that Mueller lacked adequate supervision.
"He is aware of what we're doing," Dreeben said in an apparent reference to Rosenstein. "It is not the case that the special counsel is off and wandering in a free-floating environment."
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This was the first public appeals hearing regarding the Mueller probe. Kamenar said after the hearing that he would "certainly" appeal to the Supreme Court if the appeals judges rule against him, though experts say it's unclear whether the high court would take the case.
"We believe at that point with this current bench that they would find that Mueller is basically acting as a rogue type of a prosecutor," Kamenar said. Asked if he was referring to the presence of newly minted Justice Brett Kavanaugh, Kamenar replied, "Absolutely."
Mueller's team defends his authority in court amid Justice Department shakeup (CNN)
Mueller power questioned in first post-Sessions court hearing (Politico)