An appeals court that’s hearing a legal challenge to special counsel Robert Mueller’s authority requested Friday that the parties involved file briefings on how the takeover of acting Attorney General Matt Whitaker — who’s taking charge of the probe with the Wednesday firing of Attorney General Jeff Session — may impact the case.
“It is ORDERED by the Court on its own motion that each party submit a supplemental brief addressing 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 order says, giving the parties a deadline of Nov. 19.
The appeals court panel heard oral arguments on the case on Thursday, during which the judges said that it should be argued as if the shake-up at the Justice Department hadn’t happened, but indicated that they were likely to ask for briefing on the change of leadership.
The challenge has been brought by Andrew Miller, an ex-Roger Stone aide who argues that Mueller’s appointment was unconstitutional because it was made by Deputy Attorney General Rod Rosenstein — who had oversight over the federal Russia investigation because Sessions was recused — rather than by the attorney general.
Miller’s lawyer Paul Kamenar (pictured above) told reporters after the hearing that he believes that Sessions’ replacement, Whitaker, has the authority to reappoint Mueller if he chooses, but argued that everything Mueller had done before that point — including indictments and plea deals — should be invalidated due to what Kamenar says is a lack of authority.
Whitaker, notably, has shown himself to be a deep skeptic of the Russia investigation in punditry he did before joining the Justice Department as Sessions’ chief of staff last year.
Four federal judges have upheld Mueller’s authority, including U.S. District Court Chief Judge Beryl Howell, who rejected Miller’s arguments and held him in contempt for resisting a Mueller subpoena. (She has paused the contempt decision while he appeals the case).
Miller’s lawyer told reporters Thursday that if they lose at the appeals court level, they intend to appeal the case to the Supreme Court.
Rachel Maddow raised this issue last night when she was talking about the hearing yesterday in the case involving the Stone aide. She said that the attorney representing the Office of the Special Counsel, who is one of the most prominent appellate attorneys in the country, was telling the Court that basically the OSC has to report EVERYTHING to the Acting AG – can’t make a move without reporting it.
Well, that’s in part how Rosenstein defended the OSC’s legitimacy, so it should not be surprising that the same argument is now being made about his successor’s authority.
Somebody is forced to show his hand ?
Check.
If it gets to the Supreme Court - checkmate.
God and the House of Representatives - please help us.
This is really interesting. Mueller’s appointment is legal because he reports to a senate confirmed officer, who directs his actions. He is an “inferior officer” in constitutional lingo. This is why the special counsel law was upheld in Morrison v. Olson. There is no reasonable argument that Mueller’s appointment is not permissible.
The problem with The Iowa Loon that Trump put in charge of DOJ is that he is NOT senate confirmed, has never been, and in addition he never exercised executive authority as chief of staff, and as such there are major constitutional and statutory issues with him being in charge of anything. Broadly speaking the issues presented by his appointment are the flip of those with Mueller. Mueller has a boss that controls him, and needs to report to a senate confirmed officer, which he does. On the Other hand Whitaker needs to be senate confirmed since he has no direct boss, only the president.
But the upshot of this is not clear. Rosenstein is still senate confirmed, and believe the most likely outcome is the appellate court noting that Rosenstein is in charge and in place when casting doubt on any actions that would be taken by Whitaker. I find it hard to believe that the Court would say that Mueller has to go since the president president put someone illegitimate over his investigation. Such a ruling gets into the area of “the constitution is not a suicide pact” as put by Justice Jackson