WASHINGTON (CN) - A former aide of longtime Trump confidant Roger Stone told the D.C. circuit late Tuesday that no law gives the attorney general the authority to appoint a private attorney to serve as special counsel.
Andrew Miller, who was held in contempt in August for refusing to appear before the grand jury as part of Robert Mueller's Russia probe, made the argument in a reply brief as part of his appeal of the contempt order.
The government argued in a Sept. 28 brief that Mueller is an inferior officer whose appointment complies with the Constitution's appointments clause, which allows the head of a department to appoint an inferior officer who is supervised and directed by a presidentially-appointed and Senate-confirmed officer.
In this case Deputy Attorney General Rod Rosenstein stepped into the role of acting attorney general after Jeff Sessions recused himself from all matters related to the FBI's probe of Russian election meddling, and whether the Trump campaign coordinated with the Kremlin's effort to swing the 2016 presidential election in Trump's favor.
But Miller's attorney Paul Kamenar argued in the Oct. 9 brief that no law allows the attorney general to appoint a private attorney as an inferior officer, and no law contains language that specifically authorizes a department head to appoint an inferior officer.
"That specific appointment authority is exactly what is missing here, and this court should find that the special counsel's appointment is unlawful under the appointment clause," the brief says.
Kamenar claims that Mueller is actually a principal officer because of the extraordinary prosecutorial powers he possesses.
Likening him to a U.S. attorney, which requires presidential appointment and Senate confirmation, Kamenar says Mueller is not subject to "substantial supervision and oversight" that would qualify him as an inferior officer.
"While he must follow Department policies and is subject to mundane administrative, personnel, and budgetary policies, the Special Counsel is under no obligation to get approval from the Acting Attorney General before taking any action," the brief says.
On Friday nine constitutional law professors disagreed with this position, expressing their support for the legality of Mueller's appointment in a friend of the court brief filed with the D.C. Circuit.
They argued that Mueller is satisfactorily supervised by a department head - in this case Rosenstein - and that the Supreme Court has long recognized the appointment of inferior officers who are directed and supervised by a presidential appointee.
Kamenar however argued that beyond the lack of statutory authority he believes Rosenstein had to appoint Mueller as special counsel, that other matters illustrate the acting attorney general's oversight over Mueller "is likely to be quite faint."
That includes public reports that President Trump upset Rosenstein when he used his memo recommending that former FBI Director James Comey be removed for mishandling the Hillary Clinton email server investigation as a pretext to fire him.
"Also concerning was the issuance of indictments against Russian intelligent (sic) officers on the eve of the U.S.-Russia Summit," the brief says.
That July 13 indictment offers up the most detailed account to date of how 12 Russian intelligence officers orchestrated a spear phishing attack that led to the theft and strategically timed release of Democratic emails used to sabotage the 2016 election.
Kamenar also argued that Mueller can, without consulting the acting attorney general, make final determinations about who to prosecute, indict and investigate. Those decisions, Kamenar noted, can only be challenged in an Article III court.
The D.C. Circuit is set to hear oral arguments in Miller's appeal on Nov. 8, where Kamenar will argue before U.S. Circuit Judges Karen Henderson - a Reagan appointee - Clinton appointee Judith Rogers and Obama appointee Sri Srinivasan.
Kamenar has said that if they lose the appeal they are prepared to take their fight challenging the constitutionality of Mueller's appointment to the Supreme Court.
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