Appeals Court Rules That Mueller Was 'Properly Appointed'

Mueller departs after briefing the U.S. House Intelligence Committee on his investigation of potential

Mueller departs after briefing the U.S. House Intelligence Committee on his investigation of potential

That one, by an unidentified foreign corporation, is now before the Supreme Court.

No, the case isn't actually titled Conway v. Calabresi.

A three-judge panel in Washington on Tuesday unanimously rejected a salvo of legal arguments from Andrew Miller, a Roger Stone ally who spurned Mueller's grand jury subpoena seeking his testimony past year in favor of a court fight over the special counsel's legitimacy.

Unless Miller attempts to appeal the decision, either to an en banc full circuit court or to the Supreme Court, he'll have to comply with the grand jury's original subpoena orders or suffer penalties of being found in contempt of court for refusing to do so. Mueller did not receive such confirmation, as he was appointed by Deputy Attorney General Rod Rosenstein to lead the probe after the firing of former FBI Director James Comey.

From the beginning, Miller's argument has echoed Calabresi's-sometimes almost verbatim.

A spokesman for Mueller declined to comment on the opinion Tuesday, or to say whether the special counsel would continue to seek Miller's testimony before wrapping up its 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 US attorney-a role that is usually filled by a presidential nomination and confirmation by Congress. The court said the appointment is valid in part because Mueller is supervised by the attorney general and "effectively serves at the pleasure of an Executive Branch officer" confirmed by the Senate. Concord's attorneys filed a brief and participated in oral arguments in support of Miller's claim.

The case at the D.C. Circuit was argued one day after Trump ousted Sessions as attorney general. The opinion is surprisingly short, given how long it took the panel of Judges Srinivasan, Judith Rogers and Karen LeCraft Henderson to rule on the matter.

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The court agreed in its ruling Tuesday that Mueller is an "inferior officer".

"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.

Mueller is preparing to submit to Attorney General William Barr a report on his investigation, a probe that has cast a cloud over Trump's presidency.

Miller's attorney, Paul Kamenar, told the court in November that Mueller was given so much power that his appointment should have been made by the president and confirmed by the U.S. Senate.

In the legal fight, Miller argued that Mueller hadn't been properly appointed, making his grand jury subpoena invalid.

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. But it is far from the first time a federal judge has done so.

U.S. District Court Judge Beryl Howell slapped Miller with the contempt charges on August 10, 2018, but later stayed the case until it could be heard by an appeals court. Judge Amy Berman Jackson, also of the District of Columbia, has likewise ruled on the legality of Mueller's appointment in Paul Manafort's now-defunct civil suit against the Justice Department, though not on constitutional grounds.

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