As Roger Stone associate Andrew Miller continues to challenge Special Counsel Robert Mueller's authority by fighting a subpoena, the federal judges presiding over the appeal ask attorneys on both sides to file new briefs explaining how Jeff Sessions' resignation and Matthew Whitaker's appointment in his place might impact the case.
In a one-paragraph order, the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit told Mueller and lawyers for a former aide to Roger Stone that they have until Nov. 19 to turn in briefs that sift through Wednesday’s firing of Attorney General Jeff Sessions and the legal reaction it may have created.
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The new DOJ arrangement for Mueller has prompted calls for Whitaker’s recusal because of conflicts of interest tied to past statements he’s made about the investigation and his own connections to a former Trump adviser who has been called as a witness before the Mueller grand jury.
Whitaker has given no sign he’s going to recuse himself.
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The Whitaker-Sessions shake-up came up briefly Thursday during oral arguments in the D.C. Circuit courtroom...
There, Judge Karen Henderson said the judges would set aside Sessions’ departure for the hearing but likely would ask for supplemental briefing to address the legal issues tied to the handover from Rosenstein to Whitaker.
[Friday's] court’s order directed each party in the case to file briefs by Nov. 19 outlining, “what, if any effect, the November 7, 2018 designation of an Acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”
The Atlantic's Natasha Bertrand explains Miller's argument against Mueller's constitutional power actually may be just what the special counsel needs to protect his investigation from Whitaker.
Miller’s lawyers tried to argue that Mueller’s work isn’t lawful, saying that he’s effectively acting as a principal officer of the U.S. government without having gone through the proper Senate confirmation process that position requires. (“Principal officers” include Cabinet officials, among other posts.) But Michael Dreeben, Mueller’s lawyer, insisted that Mueller doesn’t qualify as a principal officer, because he “has a regular reporting obligation to the acting attorney general.”
Who Mueller reports to is of major consequence ...
And in that role, as Dreeben explained in court, Whitaker has significant power: While Mueller’s team is “independent on a day-to-day basis,” if the acting attorney general found anything to be “inappropriate” or “unwarranted,” he could intervene. Indeed, the special-counsel guidelines allow the acting attorney general to overrule any “investigative or procedural step” proposed by Mueller if the move is deemed “inappropriate or unwarranted under established department practices.”
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... It is possible that the court will decide that Rosenstein, not Whitaker, is Mueller’s rightful boss, according to Neal Katyal, a former acting solicitor general under President Barack Obama.
Short of that conclusion, however, Mueller may have some recourse in the event that Whitaker maintains control over the investigation and attempts to either suppress it or shut it down. Several legal experts have argued that Trump’s appointment of Whitaker may have been unconstitutional. At issue is the same question of who qualifies as a principal officer. Because Whitaker reports directly to the president, he is a principal officer, these experts say, and would have required Senate confirmation.
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Questions over Whitaker’s legitimacy could work to Mueller’s advantage, according to Jens David Ohlin, a professor at Cornell Law School who specializes in criminal law. Ohlin explained that Mueller could challenge Whitaker’s appointment in federal court on both statutory and constitutional grounds, the latter of which is “most likely to succeed.”
“In order to get either of these issues before a federal court, someone needs standing to bring the claim, which means they’ve been specifically harmed,” Ohlin told me. “If Mueller is fired, which is Whitaker’s ‘nuclear option,’ Mueller certainly has standing to object to Whitaker’s appointment.”
Read more: How Mueller Could Defend the Russia Investigation From Interference (The Atlantic)
Judges order Mueller to explain impact of Sessions-Whitaker DOJ shakeup (Politico)
Federal court asks how Sessions' ouster impacts lawsuit challenging Mueller (Reuters)