WASHINGTON (CN) – An attorney for a Russian company indicted by special counsel Robert Meuller complained in court Friday about the recent endorsement of Mueller’s authority by the court’s chief judge.
While U.S. District Judge Dabney Friedrich is presiding over the case against Russian oligarch-owned Concord Management and Consulting LLC, it was Chief U.S. District Judge Beryl Howell who on July 31 shared her thoughts about Mueller’s authority.
Howell made the findings in a 93-page opinion pockmarked with redactions that directed Andrew Miller, an associate of Roger Stone, to testify before the grand jury pertaining to Mueller’s probe.
Though Miller has argued that the supposed unconstitutionality of Mueller’s appointment required Howell to quash the subpoenas he faces, Howell squarely rejected the argument.
“The scope of the special counsel’s power falls well within the boundaries the Constitution permits as the special counsel is supervised by an official who is himself accountable to the elected president,” Howell wrote.
Reed Smith attorney Eric Dubelier, who represents Russian oligarch-owned Concord Management and Consulting LLC, noted Friday, however, that their motion to dismiss hinges on the same claims about Mueller’s authority.
Dubelier called it improper that Howell essentially ruled on this matter in the Miller matter without inviting Concord’s defense team to the table.
Howell’s opinion was also distributed at different times to the parties, Dubelier claimed. While prosecutors allegedly received a copy on Tuesday, defense attorneys and Judge Friedrich got a hold of the opinion less than 24 hours prior to the start of Friday’s hearing. Friedrich, it should be noted, is a Trump appointee.
Dubelier pointed out as well that prosecutors had asked the court at the beginning of July to reschedule today’s hearing, which was previously scheduled for August 1.
Incensed, Dubelier said he wants to see the sealed pleadings in the grand jury matter. He also asked the court for additional time to respond to Howell’s opinion in further briefing so that he can explain why he believes Howell’s ruling on the constitutionality of Mueller’s appointment is wrong.
Friedrich offered a solution. “What if I say I’m not going to consider the opinion at all,” the judge said. “Does that resolve the issue?”
Dubelier said the questions posed by Friedrich during Friday’s roughly two-hour hearing lead him to believe that Howell’s opinion means little to her in terms of how she might rule on Concord’s motion to dismiss.
Accused of having funded one of the Russian troll farms that supported the candidacy of Donald Trump over Hillary Clinton in the 2016 election, Russian oligarch-owned Concord faces a single charge of conspiracy.
On Friday Dubelier argued that Friedrich would benefit from further briefing if he can prove that Howell’s opinion is wrong, and said she has the authority to order the chief judge to unseal the secret pleadings.
Department of Justice prosecutor Michael Dreeban meanwhile denied any nefarious intent in having sought to reschedule Friday’s hearing, pointing out that Concord’s reply brief was due only two days prior to the originally scheduled Aug. 1 hearing.
In their July 3 motion requesting that the hearing be rescheduled to Aug. 3, prosecutor Ryan Dickey said they sought an extension “so that counsel for the government will have an opportunity to review what may be a lengthy reply.”
In court Friday, prosecutor Dreeban also noted that to the extent possible, pleadings in the sealed grand jury matter will be made public, but suggested that defense counsel would not find much new in any unsealed materials.
Dreeban said he would inform Concord’s defense team when those documents are unsealed.
Prior to that the parties argued about whether Deputy Attorney General Rod Rosenstein properly appointed Mueller, and whether existing Department of Justice regulations governing the special counsel are unlawful.
Concord claims that Mueller has unchecked authority and that Rosenstein, who oversees the Russia probe because Attorney General Jeff Sessions recused himself from the matter, lacked authority to appoint a private attorney to serve as special counsel.
Friedrich took interest in Concord’s legal arguments, which Reed Smith attorney James Martin presented in court Friday.
While prosecutor Dreeban argued that the court need only rely on the Supreme Court’s ruling in U.S. v. Nixon, which held that section 533 of the U.S. Code gives the attorney general authority to appoint officials and delegate prosecutorial power over certain matters, Martin countered that the opinion isn’t authoritative.
The Nixon opinion mentions 533 only in passing and not in the context in which the question is now before the court, Martin argued.
“I find your statutory arguments compelling,” Friedrich said. But she pushed him on the precedent in the Nixon case.
“Even if it is just dicta with Nixon, don’t I as a district judge have to follow that,” Friedrich asked.
Martin said the attorney general lacks authority on his own to appoint a special counsel minus some other statute. He also argued that such an appointment would need to be made in-house, agreeing when Friedrich asked that it would have made a difference if Rosenstein had first brought Mueller into a position with the Justice Department, and then appointed him as special counsel.
Friedrich pressed prosecutor Dreeban to explain what, if any, Justice Department regulations exist that serve as a check on Mueller’s authority.
“What kind of standard is it for Mr. Mueller or anyone else,” Friedrich asked.
Dreeban did not specify the precise regulations or policies at issue, but assured the court that the special counsel follows them and regularly consults with Rosenstein on major prosecutorial developments.
But Friedrich appeared skeptical at times that sufficient power exists to check the authority of Mueller, who can only be removed for good cause. She questioned whether Rosenstein could intervene if he disagreed with a prosecutorial decision made by Mueller, and if he could take action in the event of a minor disagreement.
In the latter case, Friedrich asked who makes the call.
“Under the regulation, as drafted, it seems like the special counsel does,” Friedrich said.
Dreeban tried to assure Friedrich that the existing guidelines mean that Mueller is not operating above the law, and that Rosenstein has adequate supervisory power over him.
Defense attorney Martin challenged that assertion, however, saying that all major investigatory steps rest with the special counsel.
“And that is by design,” Martin said.
Friedrich did not indicate when she would rule on the motion, or whether she would take Howell’s opinion under advisement in issuing her own ruling.