WASHINGTON (CN) – Fighting the subpoena brought against an aide to Trump associate Roger Stone, an attorney urged the D.C. Circuit on Thursday to find the appointment of Special Counsel Robert Mueller unconstitutional.
The arguments came one day after Attorney General Jeff Sessions’ ouster from the Justice Department, and U.S. Judge Karen LeCraft Henderson asked the attorneys in the case to act “as if it were being argued yesterday morning.”
Henderson said the court would “most likely” be requesting supplemental briefing to see if President Donald Trump’s replacement of Sessions changed the case at all.
The panel, which featured Henderson and Judges Sri Srinivasan and Judith Rogers, did not signal a clear preference for either side’s arguments this afternoon.
Mueller had subpoenaed the aide Andrew Miller in June as part of the ongoing investigation of Russian interference in the 2016 election and alleged coordination with the Trump campaign.
The day before Miller was to go before the grand jury, his attorneys asked a federal judge to quash the subpoena, claiming Mueller’s appointment was unconstitutional. The judge denied the motion on July 31 and ordered Miller to appear before the grand jury on Aug. 10.
On the eve of that scheduled appearance, however, Miller’s attorneys asked the judge to hold Miller in contempt, saying he would not be showing up for his appointment with the grand jury. The judge obliged, and Miller appealed the contempt order, as he had intended to from the beginning.
Joining Miller in challenging Mueller’s appointment was Concord Management, a Russian company Mueller’s office has accused of funding the internet-troll farms that meddled in the election.
Arguing on behalf of Miller on Thursday afternoon, Paul Kamenar said Mueller wields “extraordinary” power without direct supervision or accountability and can only be removed for cause.
“There’s no day-to-day supervision, there’s no regular consultation,” Kamenar said.
Kamenar likened Mueller’s authority to that of a federal prosecutor, though the special counsel has even more jurisdictional freedom than the people who fill that position.
“So he’s like a U.S. attorney at large,” Kamenar said.
Extending this comparison, Kamenar said Mueller is not an inferior officer and should have been required to receive approval from the Senate before taking his post.
By far the most active questioner from the bench on Thursday, Srinivasan challenged Kamenar to distinguish his case from previous ones in which courts upheld the constitutionality of a special counsel’s appointment.
Kamenar responded by noting that Mueller’s probe is broader than the one at issue in Morrison v. Olson. The lawyer also said newer cases require more consideration because they involve appointees whose removability and supervision requirements are more similar to those of Mueller.
As a separate matter, Kamenar said Mueller’s appointment is unconstitutional because he was appointed by Deputy Attorney General Rod Rosenstein, not Sessions. Sessions, as the head of the Justice Department, was the only one who had the authority to put Mueller in place, Kamenar said.
Even though Sessions recused himself from any investigations involving the Trump campaign, he could not abdicate his power to appoint the investigators themselves, Kamenar argued.
“The attorney general cannot delegate, even if he wanted to, his appointment authority,” Kamenar said.
He compared Rosenstein appointing Mueller to Trump deciding he could not appoint the head of the General Services Administration because of his business holdings and instead delegating that power to Vice President Mike Pence.
James Martin, a Reed Smith attorney who argued for Concord, attacked Mueller’s appointment from a different side, saying no law grants the Justice Department authority to hire a special counsel.
Srinivasan wondered, however, about how this would apply to more familiar, lower positions at the Justice Department, such as that of deputy solicitor general, a position Srinivasan once held.
“Does your position mean that the appointment is invalid because there was no Senate confirmation attached?” Srinivasan asked.
Deputy Solicitor General Michael Dreeben, who defended Mueller’s appointment on behalf of the government, presented a much different vision of the special counsel than his opponents, saying Justice Department regulations do a great deal to wall in Mueller’s powers.
Rather than being a “free-floating” official, Mueller must regularly report to Rosenstein and must stop if told that an issue he is pursuing is out of bounds, Dreeben said.
Circling back to the for-cause-removal provision that troubled Kamenar, Srinivasan wondered whether the Justice Department official in charge of Mueller could remove the provision simply by amending the order that appointed the special counsel.
“Is the power to amend the order enough so you don’t have to get into rescinding the regulations?” Srinivasan asked.
Dreeben confirmed this would be possible and cited it as a reason Mueller is an inferior officer not subject to Senate confirmation. So long as the attorney general is able to get his power back, the person to whom he gave the power is an inferior officer, Dreeben said.
Dreeben also cut off arguments that Sessions, not Rosenstein, needed to be the one to appoint Mueller by saying Sessions has the ability “to float power down to others.”
Much of Dreeben’s argument also rested on the court’s precedent in previous cases touching on special counsels, saying the D.C. Circuit should follow those earlier decisions.
As of this fall, Mueller is said to have secured testimony from at least nine associates of Roger Stone, a Republican operative who is close with Trump.