Ex-Roger Stone Aide Finally Agrees to Testify Before Mueller Grand Jury

Robert Mueller might have officially stepped down Wednesday from his post as Special Counsel, but the fallout from his investigation continues. Andrew Miller, a former aide to political hatchet man Roger Stone, has agreed to testify in front of the special counsel’s grand jury.

Miller had sued in an attempt to block the subpoena and lost challenges of Mueller’s authority at the District Court and Appellate Court levels. He argued that the Special Counsel’s appointment was unconstitutional, and therefore could not compel him to testify.

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.

Ronn Blitzer contributed to this report. 

[Image via Drew Angerer/Getty Images]

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