Constitutional Law Professors Back Mueller at DC Circuit

WASHINGTON (CN) – Special counsel Robert Mueller received a court endorsement Friday from nine constitutional law professors who want the D.C. Circuit to affirm the constitutionality of Mueller’s appointment.

Filed by attorneys with the Constitutional Law Center, the 40-page brief came in response to an appeal from Roger Stone aide Andrew Miller, whose refusal to honor a subpoena by Mueller earned him a contempt order on Aug. 10.

Part of Miller’s appeal includes a challenge to whether Acting Attorney General Rod Rosenstein lawfully appointed Mueller to investigate Russia’s tampering with the U.S. election in 2016. Rosenstein inherited oversight of the Russia probe after Attorney General Jeff Sessions recused himself from the matter.

But Miller’s attorney Paul Kamenar says Mueller should have been appointed by the president and confirmed by the Senate, much like U.S. attorneys, because of his “extraordinary powers as a prosecutor.” Kamenar also claims that Mueller operates without sufficient supervision or control over his conduct.

But the law professors — who specialize in constitutional and administrative law, the separation of powers, and the appointments clause — told the D.C. Circuit on Friday that Mueller is an inferior officer and his appointment conforms with the appointments clause of the Constitution.

Pointing to the flexibility inherent in the clause, the professors argue that heads of departments – in this case Rosenstein – can appoint inferior officers.

“The Supreme Court has recognized that Officers may qualify as ‘inferior’—and thus may be appointed by the president, the head of a department, or a court of law — if their ‘work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate,'” the brief says.

The attorney general has the authority to remove a special counsel, and can revoke the Justice Department’s regulations that protect a special counsel from for-cause removal.

“Moreover, the regulations themselves afford the attorney general wide latitude to supervise and direct the special counsel, and permit the attorney general to fire the special counsel for ‘misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,'” the brief says.

The law professors also say Mueller is supervised at least as much as U.S. attorneys are, classifying the latter group as inferior officers as well because of the attorney general’s close supervision of their activities.

They say all three branches have long affirmed this interpretation.

“If United States attorneys — some of whom supervise hundreds of attorneys and have the power to prosecute a vast array of federal crimes — are inferior officers, then the special counsel — who oversees far fewer individuals, has a far narrower jurisdictional scope, and is subject to no less supervision — must be an inferior officer as well,” the brief states.

Miller’s appeal offers the D.C. Circuit its first crack at considering the constitutionality of Mueller’s appointment, which several District Court judges have already confirmed.

That list includes Trump-appointee U.S. District Judge Dabney Friedrich, who found that Congress gave the acting attorney general authority to appoint a special counsel.

Oral arguments in Miller’s appeal will take place at 9:30 a.m. on Nov. 8 before a three-judge panel at the D.C. Circuit.

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