WASHINGTON (CN) – A former aide to Trump confidant and longtime GOP operative Roger Stone asked the D.C. Circuit on Wednesday to consider whether special counsel Robert Mueller was constitutionally appointed.
Filed this morning by Andrew Miller, who worked for Stone during the campaign, the brief also asks whether a private attorney can serve as special counsel, and if so whether he must be appointed by the attorney general rather than Deputy Attorney General Rod Rosenstein.
Rosenstein took over matters related to the Russia investigation after Attorney General Jeff Sessions recused himself, appointing Mueller in May after President Donald Trump fired former FBI Director James Comey.
When Miller refused to appear before the grand jury on Aug. 10 as part of Mueller’s investigation, Chief U.S. District Judge Beryl Howell held Miller in contempt and ordered him jailed until he testifies. But Howell stayed the order while Miller appeals it.
Mueller’s office, which is investigating the Kremlin’s interference in the 2016 election and whether the Trump campaign coordinated with that effort, wants Miller to provide documents and offer testimony to the grand jury.
Miller meanwhile is claiming that the possibility of any questions involving financial transactions means he is immune from having to testify about Stone. Court documents also show that Miller has asked for a limit to the questions posed to him about his former boss.
The appeal to the D.C. Circuit comes after Judge Howell denied the motion by Miller to quash the subpoena on the basis of Mueller’s appointment.
Miller’s attorney Paul Kamenar challenged Howell’s conclusion head-on Wednesday morning.
“Because of his extraordinary powers as a prosecutor, coupled with the lack of supervision and control over this conduct, the Special Counsel, like U.S. Attorneys, was required to be appointed by the President and confirmed by the Senate,” the 44-page brief brief says.
Kamenar filed the brief one minute shy of the midnight deadline, and submitted another brief at 4:34 a.m. that included a table of contents, legal authorities and an addendum. Kamenar had twice asked the court to extend the deadline for submitting the brief.
Miller’s appeal gives the D.C. Circuit its first opportunity to assess the constitutionality of Mueller’s appointment. Kamenar has said they will take the challenge all the way to the Supreme Court if they lose the appeal.
So far, every federal judge who has heard challenges to the constitutionality of Mueller’s appointment or the scope of his authority under the appointment order have affirmed his authority and the legality of his appointment.
This list includes U.S. District Judge Dabney Friedrich, whom Trump appointed to the federal bench in December. Friedrich is presiding over Muller’s prosecution of indicted Russian firm Concord Consulting and Management LLC.
Mueller charged Concord with a single count of conspiracy for allegedly funding one of the Russian troll farms that worked to sway the 2016 election in support of Donald Trump over Hillary Clinton.
Like Miller, Concord has also challenged the constitutionality of Mueller’s appointment and asked the court to dismiss the indictment, but Friedrich found that Congress gave the acting attorney general authority to appoint a special counsel despite the lack of a law that expressly authorizes it.
Mueller’s appointment, she ruled, does not violate separation-of-powers principles and nor did Mueller exceed his authority in prosecuting Concord.
Howell meanwhile, who Obama appointed in 2010, said Mueller’s power “falls well within the boundaries the Constitution permits.”
And U.S. District Judge Amy Berman Jackson, who is presiding over ex-Trump campaign chair Paul Manafort’s criminal case in Washington, D.C., denied his challenges to the scope of Mueller’s authority.
Concord, which has pleaded not guilty to the lone conspiracy charge it faces, recently appealed Friedrich’s Aug. 13 ruling, and has also moved to intervene in Miller’s appeal on the basis that the D.C. Circuit’s ruling in the matter will set precedent that directly impacts Concord’s own legal battle against the special counsel’s charge.