A lawyer for the ex-Roger Stone aide challenging special counsel Robert Mueller’s authority said he planned take the case, which was heard in a D.C. appeals court Thursday, to the Supreme Court if need be.
“Even if we were to lose our arguments today, we are certainly going to go to the Supreme Court,” the attorney Paul Kamenar, who is representing Andrew Miller, told reporters after the hearing. Miller was subpoenaed by Mueller, but fought the subpoena in court.
“We believe that at that point, with this current bench, that they would find that Mueller is basically acting as a rogue type of prosecutor that’s at-large U.S. Attorney,” Kemenar said, who later pointed specifically to the addition of Justice Brett Kavanaugh to the bench.
The appeals court hearing lasted well over an hour, and focused on the appointment of Mueller by Deputy Attorney General Rod Rosenstein, who at the time had oversight over the Russia probe due to then-Attorney General Jeff Session’s recusal.
Arguing for Mueller’s team Thursday was Michael Dreeben.
An attorney for the Russian firm indicted by Mueller that has also challenged his authority argued as an amicus in the case.
The issues being argued in front of the appeals court were extremely dense and mostly focused on whether the constitution allowed Rosenstein to make the appointment of Mueller.
At the outset, the panel of judges alluded to Session’s ouster by President Trump Wednesday, and his naming of a new acting attorney general, Matt Whitaker, who now has oversight over the probe. Judge Karen Henderson instructed the parties to argue the case is if it were “yesterday” and the “events of yesterday” hadn’t happened.
She said that the court would ask for extra briefing on how those events affected the case if they decided it was necessary.
Judge Sri Srinivasan grilled Kemenar on his arguments, while Judge Judith Rogers also had some questions for the attorney.
Srinivasan also led the questioning of Dreeben, though Dreeden faced less of an interrogation.
“It is not the case that the special court is wandering” in a “free-floating” environment, with no requirements to report his actions, Dreeben said, as Kemenar had suggested.
Dreeben also challenged a claim made by Kemenar that Mueller had expanded the scope of his probe.
“Our jurisdiction has never been expanded,” Dreeben said.
After the hearing, Peter Flaherty — the chairman of the conservative National Legal And Policy Center, which is spearheading Miller’s case — explained to reporters how the challenge came about. He said he was “inspired” by an op-ed by law professor Steven Calabresi arguing that Mueller’s appointment by Rosenstein was unconstitutional.
(Calabresi’s arguments have been widely dismissed by other legal scholars, and even a judge in the Manafort case — where Manafort challenged Mueller’s authority, but not on the grounds laid out by Calabresi — said Calabresi’s arguments “would likely fail.”)
“Professor Calabresi encouraged any witness or target or anybody who had been charged to bring the constitutional challenge, so it’s a small universe of people, so I went and found Andrew Miller,” he said, adding that he then got in touch with Kemenar to represent Miller.
Miller, who is based in St. Louis, was not at Thursday’s hearing. He was unsuccessful in convincing Judge Beryl Howell, the chief judge of the U.S. District Court, to quash his subpoena. She then held him in contempt as he continued to resist it, but paused the contempt ruling while he appealed the case to the appeals court.
“We’re delighted that we’ve gotten to this level. It was not easy or automatic,” Flaherty said.