It’s not immediately clear why people think they’re going to get a judge to say special counsel Robert Mueller‘s Russia investigation is unconstitutional, but they keep giving it the old college try.
Andrew Miller, long-time aide to Republican insider and former Trump campaign advisor Roger Stone, saw a judge smack down his lawsuit challenging Mueller’s authority. Miller ignored grand jury subpoenas.
On Thursday, Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia ordered Miller to appear.
“Witness [Miller]’s Second Motion to Quash Subpoena is denied. Consequently, the witness is ordered, pursuant to the grand jury subpoenas served by the Special Counsel, to appear before the grand jury to provide testimony at the earliest date available to the grand jury, and to complete production of the subpoenaed records promptly,” she wrote in her conclusion.
Judge Howell answered the debate of whether the special counsel is a principal or inferior officer. Howell said he was the latter. This the key: Miller’s lawyers contended that Mueller is a principal officer, which according to the Appointments Clause of the Constitution, means the president of the United States “shall nominate” him “by and with the Advice and Consent of the Senate.”
Mueller was not nominated by the president by and with the advice and consent of Congress, therefore unconstitutional, Team Miller claimed.
This is the relevant constitutional reference to inferior officers: “Congress may by Law vest the Appointment of such Inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The judge said Mueller is an inferior officer, therefore his appointment by a “Head of Department” (yes, in this case the acting head of the Department of Justice, U.S. Deputy Attorney General Rod Rosenstein) is constitutionally valid.
But wait — Rosenstein isn’t really the Head of Department, that’s Sessions.
“[G]overning statutes give the Acting Attorney General broad authority to direct and supervise the Special Counsel. The Acting Attorney General has delegated and can rescind all authority the Special Counsel enjoys,” Howell responded to this. “[T]hus enabling the Acting Attorney General to oversee the Special Counsel’s work and countermand the Special Counsel’s actions.”
Howell explained later on why the Acting Attorney General is empowered to act as Rosenstein has, given the recusal of Attorney General Jeff Sessions:
Section 508(a) of title 28, United States Code provides: “In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.” 28 U.S.C. § 508(a). The witness argues that Section 508(a) does not authorize the DAG to serve as Acting Attorney General but only to exercise the Attorney General’s duties, and that the Attorney General’s recusal did not trigger Section 508(a) in any event because recusal is not “absence” or “disability.” Neither argument persuades.
Her opinion ran more than 90 pages.
As Law&Crime previously reported, Stone’s one-time go-to guy Miller was called to appear before a grand jury in relation to Mueller’s ongoing probe but did not.
Miller’s attorney Paul Kamenar said he intended to fight the subpoena by arguing that Mueller’s appointment was unconstitutional, and he did. He’s lost that fight. As we noted then, this tactic had already been attempted–unsuccessfully–by Paul Manafort‘s attorneys, and is currently being used by an alleged Russian troll farm facing criminal charges from Mueller’s office.
Miller became the third Stone acolyte to be subpoenaed by Mueller thus far. John Kakanis and Jason Sullivan were already reportedly called to testify before the grand jury in the wide-ranging electoral interference probe. Since then, news that Mueller planned to subpoena the so-called “Manhattan Madam” came out. Kristin Davis was also an aide for Stone.
Miller was once described by Stone as a “trust fund baby” who’s “like a son to me.”
Colin Kalmbacher contributed to this report.
[Image via Saul Loeb/AFP/Getty Images]