DC Circuit Upholds Mueller's Special Counsel Appointment
The panel unanimously rejected a former Roger Stone assistant's bid to challenge the special counsel's appointment.
February 26, 2019 at 10:23 AM
4 minute read
|
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.
Read the ruling:
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllBig Law Practice Leaders 'Bullish' That Second Trump Presidency Will Be Good for Business
3 minute readWhere May Vacancies for Trump Arise? These GOP-Appointed Circuit Judges Qualify for Senior Status
'Even Playing Field?' Wiley Rein Intervenes in Federal Election Campaign Spending Row
3 minute readTrending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Election 2024: Nationwide Judicial Races and Ballot Measures to Watch
- 3Guarantees Are Back, Whether Law Firms Want to Talk About Them or Not
- 4How I Made Practice Group Chair: 'If You Love What You Do and Put the Time and Effort Into It, You Will Excel,' Says Lisa Saul of Forde & O'Meara
- 5Abbott, Mead Johnson Win Defense Verdict Over Preemie Infant Formula
- 6How Much Does the Frequency of Retirement Withdrawals Matter?
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250