During Special Counsel Robert Mueller‘s investigation, he has faced a number of accusations that his authority is unconstitutional. The most recent argument, made by Andrew Miller, a former associate of Roger Stone, was shot down by the D.C. Circuit Court of Appeals on Tuesday, in no uncertain terms.
Miller’s challenge of Mueller’s authority came as he resisted a grand jury subpoena to appear, and was then held in contempt.
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. Mueller was appointed as Special Counsel by Deputy Attorney General Rod Rosenstein, who was Acting Attorney General for the ongoing Russia investigation due to Attorney General Jeff Sessions‘ recusal.
A three-judge panel disagreed with Miller, saying that Mueller is only an “inferior officer,” and thus does not have to be confirmed by the Senate. Quoting a 1997 Supreme Court case, Circuit Judge Judith Rogers wrote, “An inferior officer is one ‘whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.'”
That definition, Rogers said, describes Mueller’s position, because he reports to the Attorney General (or Acting AG), and the AG supervises him, has the power to limit his authority, dismiss him, and even alter or rescind the rules governing dismissal. Because Rosenstein (and now, Attorney General William Barr) is an officer who was confirmed by the Senate, Mueller is a properly appointed inferior officer.
“Special Counsel Mueller effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate,” Judge Rogers wrote.
The judge also pointed to the Supreme Court’s decision in United States v. Nixon, which said, ““[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties.” In that case, it was held that the Attorney General acted properly in naming a special prosecutor to investigate President Richard Nixon. Miller had tried to argue that this language in the Nixon case was non-authoritative dictum, but Judge Rogers said this was incorrect.
In conclusion, the court’s decision said:
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. Accordingly, we affirm the order finding Miller in civil contempt.
This is just the latest failed attempt to challenge Mueller’s authority. Previously, accused Russian troll farm Concord Management and Consulting LLC made a similar claim, as did former Trump campaign manager Paul Manafort.
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