Special Counsel Robert Mueller's team, responding to a court request, says Acting Attorney General Matthew Whitaker cannot make retroactive adjustments to the May 2017 order that gave Mueller his authority.
The special counsel’s office was responding to an inquiry from the U.S. Court of Appeals for the D.C. Circuit in a case brought by Andrew Miller, an associate of Roger Stone, a longtime adviser to President Trump.
The case challenges the constitutionality of Mueller’s position and centers on who is doing what job at the Justice Department and oversight of the 18-month-long probe.
After oral argument this month, a three-judge panel asked Mueller and Miller to address implications for the case of the forced resignation of attorney general Jeff Sessions — and the man the president picked to succeed him, Whitaker ...
“The designation has no effect on the case,” Mueller’s team said of Whitaker’s new position. “The validity of the Special Counsel’s appointment” in May 2017 “cannot be retroactively affected by a change in the official who is serving as the Acting Attorney General.”
Andrew Miller's attorney says Whitaker's appointment does not change his client's assertion that Mueller's appointment is unconstitutional.
The special counsel’s prosecutorial powers are too broad and the office is not subject to “substantial supervision and oversight,” according to Miller’s lawyer Paul D. Kamenar.
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The three-judge panel of the D.C. Circuit must answer the specific question of whether Mueller is a “principal officer,” requiring appointment by the president and Senate confirmation, or an “inferior” one, who can be appointed by the head of a department. The panel is made up of Judges Karen LeCraft Henderson, Judith W. Rogers and Sri Srinivasan.
In recent rulings, two district court judges in Washington — one nominated by a Democrat, the other by Trump — have upheld the constitutionality of Mueller’s appointment.
Whitaker's appointment also is facing serious legal challenges because he is a "principal officer" as head of the DOJ.
Maryland Attorney General Brian E. Frosh said in a court filing last week that Whitaker does not have the legal authority to run the Justice Department if he is not Senate-confirmed. Three Senate Democrats filed a similar complaint in federal court in Washington on Monday.
Special counsel Robert Mueller’s team defends legitimacy of appointment (WaPo)