Former Roger Stone aide Andrew Miller made news on Friday by refusing to comply with special counsel Robert Mueller‘s subpoena, even after a judge ordered him to appear before a grand jury. Miller’s attorney Paul Kamenar explained that this is exactly what his client wanted, so that they could appeal U.S. District Chief Judge Beryl Howell‘s order in the District of Columbia. What they may end up doing, however, is only making Mueller stronger.
“[W]e asked him to be [held in contempt] in order for us to appeal the judge’s decision to the court of appeals,” Kamenar explained Friday. Judge Howell stayed her order so that Kamenar can appeal, but if they lose that appeal and Miller continues to dodge the grand jury, Miller may be jailed.
That’s not all — this may turn out to be a perilous “gamble” by Miller, University of Texas Law Professor Stephen Vladeck told Law&Crime. The reason being that an appeal of Howell’s ruling on the powers of the special counsel, if affirmed, would end up making Mueller stronger by creating binding precedent in the district.
“Miller’s gamble here could well end up making Mueller stronger. Among other things, if the D.C. Circuit affirms, it becomes a precedent that binds every district judge in D.C., and that would be strongly persuasive authority for judges elsewhere,” Vladeck said. “Chief Judge Howell’s opinion, however persuasive it is in its own right, doesn’t bind anyone.”
Earlier Friday, Vladeck put it a different way on Twitter.
“The Miller #contempt episode is an effort to get this ruling by Chief Judge Howell upholding the legitimacy of the Mueller investigation before the D.C. Circuit. It’s one thing to have one district judge so hold, but a (likely) affirmance by the Court of Appeals would be huge,” he said.
As Vladeck explained above, regardless of how he personally felt about Howell’s 90-page “tour de force” opinion (you can read more on that here) on the constitutionality of Mueller’s appointment as special counsel, an affirmation of that opinion in D.C. appellate court makes that binding precedent. That means lower courts in the same jurisdiction are bound to follow it.
It doesn’t stop there, however, because this affirmation also becomes persuasive authority other judges can reference. Persuasive authority is not binding, but a judge may very well use it as a guide.
Vladeck also pointed out another interesting connection to the Miller contempt case. Lo and behold, Ken Starr, before he was a special prosecutor investigating then-President Bill Clinton in the ’90s, joined an opinion as a judge in the D.C. circuit that gave a grand jury witness the power to appeal a prosecutor’s appointment by “appealing a contempt citation.”
Miller walked into that contempt citation intentionally on Friday.
[Image via Alex Wong/Getty Images]
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