E. Barrett Prettyman Court House in Washington, D.C. Photo: Diego M. Radzinschi/ALM.

 

A federal appeals court in Washington has upheld the validity of special counsel Robert Mueller III's appointment, marking the first time a federal appeals court has affirmed the investigation that's netted dozens of indictments and several convictions.

A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit unanimously rejected on Tuesday one man's long-shot bid to challenge Mueller's appointment. Andrew Miller, an ex-assistant to Roger Stone, a longtime Trump ally who was recently indicted in the special counsel probe, brought the appeal after a lower court held him in contempt for resisting grand jury subpoenas issued last year by Mueller's prosecutors.

Judge Judith Rogers wrote in Tuesday's opinion that the special counsel is an “inferior officer” under the U.S. Constitution, rejecting one of the central arguments against Mueller's appointment: that his power as a prosecutor is so unbridled and unparalleled, he should have been first nominated by a president and confirmed by the Senate.

“Because the Special Counsel is an inferior officer, and the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General as a result of a vacancy created by the disability of the Attorney General, through recusal on the matter, we hold that Miller's challenge to the appointment of the Special Counsel fails,” Rogers wrote.

The Clinton appointee was joined by Judges Karen LeCraft Henderson, a George H.W. Bush appointee, and Sri Srinivasan, an Obama appointee.

“We are disappointed with the decision and will be considering further legal action, whether before the full court of appeals or the Supreme Court,” said Paul Kamenar, an attorney for Miller. He added that the three months it took the D.C. Circuit to issue an opinion demonstrated his case “was a serious constitutional challenge.”

In briefs, Kamenar contended Mueller's May 2017 appointment violated the appointments clause of the U.S. Constitution. Under the clause, Congress must explicitly authorize a Justice Department official to appoint a special counsel, he said. Because Congress never passed such a law, Mueller's appointment is invalid.

Kamenar argued the special counsel is a principal, not an inferior officer under the clause, which would have required that Mueller be named through presidential appointment and Senate confirmation. Even if Mueller were an inferior officer, Kamenar asserted, he would have had to be appointed by then-Attorney General Jeff Sessions, not Deputy Attorney General Rod Rosenstein.

Rosenstein named Mueller, a former FBI director, as special counsel in May 2017. That followed Sessions' decision to recuse himself from any investigation that dealt with the Trump campaign.

During oral argument in November, Michael Dreeben, a deputy solicitor general who has been detailed to the special counsel probe, rejected the notion that Mueller's power was unbounded. “It is not the case that the special counsel is wandering in a free-floating environment,” he told the panel.

Concord Management, a Russian company also charged in a Mueller case, challenged Mueller's appointment, but Judge Dabney Friedrich in Washington, D.C., a Trump appointee, also upheld his appointment last year. Concord Management was an amicus in the D.C. Circuit case, arguing alongside Kamenar.

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