Special Counsel Robert Mueller again has won a challenge to the legality of his appointment as the U.S. Court of Appeals for the DC Circuit ruled in his favor Tuesday.
Andrew Miller, a Roger Stone associate, has been fighting a grand jury subpoena, claiming Mueller's appointment was unlawful.
In an opinion written by Judge Judith Rogers, the court concluded that Mueller was an "inferior officer," which meant he could be legally appointed by Deputy Attorney General Rod Rosenstein; Rosenstein appointed Mueller to run the Russia investigation in May 2017. Miller had argued that Mueller was a "principal officer" who had to be confirmed by the US Senate.
Rogers wrote that an official in Mueller's position didn't hold enough power on his own to qualify as a "principal officer." The attorney general — or Rosenstein, who was overseeing Mueller's work until recently in light of former attorney general Jeff Sessions' recusal from the Russia probe — could withdraw the regulations that gave Mueller what authority he did have, and that dictated the conditions for when Mueller could be removed, the court noted.
"In either event, Special Counsel Mueller effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate," Rogers wrote.
Miller could petition the entire DC Circuit to reconsider his case, or he could petition the US Supreme Court. If Tuesday’s opinion stands, Miller will be jailed if he continues to refuse to comply with the grand jury subpoena.
(...)
Miller was subpoenaed last summer to testify before the grand jury. US District Chief Judge Beryl Howell found him in contempt in August when he refused to do so, and Miller appealed. Howell ordered him jailed until he testifies, but the order was put on hold for as long as he was pursuing an appeal.
The DC Circuit rejected Miller’s other arguments against Mueller’s appointment, finding that the US Supreme Court had held that Congress gave the attorney general power to appoint a special counsel. The court also found that Rosenstein was properly serving as acting attorney general and therefore had the power to appoint Mueller, since Sessions’ recusal was a “disability” that created a vacancy Rosenstein could fill.
The DC Circuit Ruled That Robert Mueller Was "Properly Appointed" (BuzzFeed News)