WASHINGTON (CN) – Challenging the lack of cooperation by former Roger Stone associate Andrew Miller, prosecutors told the D.C. Circuit Thursday that the grand jury that worked with special counsel Robert Mueller still needs Miller’s testimony.
Filed this morning by the U.S. Attorney’s Office for the District of Columbia, the government’s 21-page opposition brief indicates that the grand jury empaneled by Mueller is likely still working, and that more criminal charges related to Miller's testimony are possible.
The grand jury working with Mueller had subpoenaed Miller in May 2018 for testimony concerning Stone's relationship to WikiLeaks, its founder Julian Assange and Guccifer 2.0, a fake persona allegedly tied to Russian intelligence that filtered hacked Democratic emails damaging to Hillary Clinton during the 2016 election.
After Miller refused to testify last year, a federal judge held him in contempt, prompting an appeal to the D.C. Circuit on the grounds that the subpoena was invalid because Mueller was unconstitutionally appointed.
The D.C. Circuit rejected Miller's argument, however, and declined on April 29 to rehear the matter en banc.
Indicating that he would petition the Supreme Court next, Miller then sought a 30-day stay of the D.C. Circuit’s ruling.
Miller's attorney Paul Kamenar says a stay is warranted because the questions Miller will pose to the Supreme Court will be both "substantial" and "of exceptional importance.”
Absent a stay, Miller will either have to provide testimony to the grand jury or be jailed.
Prosecutors urged the D.C. Circuit to deny Miller’s request Thursday, saying Miller "has failed to establish a reasonable probability that the Supreme Court would grant certiorari and reverse the judgment of this Court."
Calling Miller's request “extraordinary," the government says the harm of delaying his testimony, and thus the ongoing investigation, outweighs the only harm Miller has claimed: the burden of having to travel to Washington, D.C., to testify.
“Delaying his testimony, on the other hand, would delay an ongoing criminal investigation, to the detriment of the government and the public at large,” the government’s brief says.
Prosecutors say Miller is unlikely to show that five Supreme Court justices would vote to grant certiorari and reverse the D.C. Circuit's judgment.
Kamenar said he thinks his client could prevail.
"I think we have a good shot at winning if the court were to take the case,” Kamenar said in an email. “But if the stay is not granted, [it is] unlikely we will be able to get the court to consider it since Mr. Miller will have to be incarcerated while the court decides whether to take the case.”
A footnote in Miller's motion for a stay cites supportive arguments Supreme Court Justice Brett Kavanaugh made at a symposium back in 1988.
"A special counsel [should] be appointed in the manner constitutionally mandated for high-level executive branch officials: appointment by the President and confirmation by the Senate," the footnote says (emphasis original).
Still, Miller has lost every attempt to fight his subpoena so far.
Both the D.C. Circuit and the chief judge at the U.S. District Court determined that Mueller was an inferior officer properly appointed by a Department head who was supervised and directed by a presidentially appointed and Senate-confirmed officer.
That officer is former Deputy Attorney General Rod Rosenstein, who appointed Mueller in his capacity as the acting attorney general since then-Attorney General Jeff Sessions had recused himself from the Russia investigation.
Prosecutors said Thursday the prior court rulings were correct "and the Supreme Court is unlikely to conclude otherwise."
Kamenar said he is skeptical meanwhile about the ongoing investigatory matter that requires his client's testimony.
"Since the special counsel did not note that there is an 'investigation ongoing' in the Roger Stone case, one wonders why they still need to have Miller appear before the grand jury," Kamenar said.
Because Stone has already been indicted, Kamenar said Justice Department policy prohibits the government from using the grand jury for further investigation.
The only exceptions are if prosecutors plan to charge Stone with additional crimes committed in the District of Columbia, or they are targeting individuals yet to be indicted, for which Miller could provide evidence.
"Neither scenario is plausible," Kamenar said.
The U.S. Attorney's Office for the District of Columbia, which is handling the case, did not respond to a request for comment.
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