Former Roger Stone aide Andrew Miller, fresh off of a loss at the D.C. Circuit Court of Appeals, is still holding out hope that the U.S. Supreme Court will decide Special Counsel Robert Mueller was a “principal officer” rather than an “inferior officer.” In other words, Miller is hoping that the highest court in the land finds that Mueller’s appointment as Special Counsel was unconstitutional.
Miller, you may remember, resisted a Mueller grand jury subpoena and ended up being held in contempt. He has been challenging Mueller ever since, arguing that Mueller is a “principal officer” and must have been nominated by the president and confirmed by the Senate. Mueller was appointed as Special Counsel by Deputy Attorney General Rod Rosenstein (because Jeff Sessions recused himself); Mueller was not confirmed by the Senate. District Judges and Appellate Judges have both agreed that Mueller is only an “inferior officer” as defined by the Constitution and didn’t need to be confirmed by the Senate. Miller lost his challenge in February 2019.
Nonetheless, Miller’s attorney Paul Kamenar filed a motion for a stay on Monday so that he could file a petition for a writ of certiorari to the Supreme Court. The motion was supported by the National Legal and Policy Center. The NLPC clearly wanted it to be known that a certain Supreme Court Justice known as Brett Kavanaugh was cited in the motion, drawing attention to this fact in both the press release headline and the body of the announcement.
On page six of the Kamenar filing was a footnote containing a Kavanaugh quote from Symposium: The Independent Counsel Act: From Watergate to Whitewater and Beyond. It read as follows: “A special counsel [should] be appointed in the manner constitutionally mandated for high-level executive branch officials: appointment by the President and confirmation by the Senate.”
In essence, Miller argues that he has “good cause” to bring “substantial” questions to the Supreme Court — questions that invariably ask whether Mueller was constitutionally appointed. Federal judges have ruled that Mueller was a properly appointed inferior officer.
“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,” D.C. Circuit Court of Appeals said before. “Accordingly, we affirm the order finding Miller in civil contempt.”
It remains to be seen if SCOTUS would jump at the chance to settle this once and far all, but it does not seem likely.
To date, every single federal judge to consider these constitutional challenges to the validity of Special Counsel Mueller’s appointment and investigation has rejected them.
— Steve Vladeck (@steve_vladeck) May 7, 2019
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