Appeals Court Upholds Robert Mueller's Appointment as Special Counsel After Challenge

Special counsel Robert S. Mueller III departs after a 2017 meeting on Capitol Hill

Special counsel Robert S. Mueller III departs after a 2017 meeting on Capitol Hill

But the legal issues at stake in In re Grand Jury Investigation-concerning Roger Stone associate Andrew Miller's challenge to subpoenas issued by the special counsel's office-directly map onto Calabresi's argument against the constitutionality of Mueller's appointment under the Appointments Clause, on the one hand, and Conway's rebuttal to it on Lawfare, on the other.

The court dealt with Miller's other arguments against the special counsel's appointment with similar speed.

"Special Counsel Mueller was properly appointed by a head of Department, who at the time was the Acting Attorney General", according to the 16-page opinion written by Rogers.

Miller claimed that Mueller is a "principal officer", and thus had to be put in his position pursuant to the Appointments Clause of the Constitution, which requires that such officers be nominated by the president and confirmed by the Senate.

Deputy Attorney General Rod Rosenstein lacked authority to appoint Mueller, he said.

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Ordinarily the attorney general would make such an appointment, but because then-Attorney General Jeff Sessions had already recused himself from the Russian Federation investigation, it fell to Rosenstein to make the recommendation.

Miller's attorney, Paul Kamenar, said Tuesday he is disappointed with the decision from a three-judge panel and considering whether to ask the full D.C. Circuit to rehear the case or go directly to the Supreme Court. Conway, by contrast, argued that Mueller is an "inferior officer", and therefore that Senate appointment is not required.

During Special Counsel Robert Mueller's investigation, he has faced a number of accusations that his authority is unconstitutional.

Miller's challenge of Mueller's authority came as he resisted a grand jury subpoena to appear, and was then held in contempt.

Stone, a self-proclaimed "dirty trickster" and Republican political operative for decades, pleaded not guilty on January 29 to lying to Congress, obstructing an official proceeding and witness tampering, charges brought by Mueller's team.

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This is the first time that an appeals court issued a binding opinion on the constitutionality of the Mueller investigation. Like Calabresi, Miller rested his case for Mueller's status as a principal officer in part on the argument that Mueller has the power and stature of a USA attorney-a role that is usually filled by a presidential nomination and confirmation by Congress.

"It is not the case that the special counsel's office is off wandering in a free-floating environment", government attorney Michael Dreeben said in court.

The D.C. Circuit's opinion in Miller's case doesn't bother to address this question, though.

Miller, according to the New York Times, is planning to appeal the D.C. Circuit's decision-either for a rehearing en banc or directly to the Supreme Court. But he did not commit to releasing the final report generated by the special counsel's investigation.

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