DOJ Fights Claims Mueller’s Probe Is Out of Control

Special Counsel Robert Mueller III. Credit: Diego M. Radzinschi/ ALM

In oral argument before a D.C. Circuit panel Thursday afternoon, a lawyer from the special counseI’s office issued a defense of Robert Mueller III’s probe, fighting assertions that it is an uncontrolled investigation.

“It is not the case that the special counsel is wandering in a free-floating environment and can decide” when to report to the acting attorney general, appellate lawyer Michael Dreeben said.

His defense came as a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit heard arguments in a case challenging Mueller’s appointment, brought by Andrew Miller, a former aide to Trump confidant Roger Stone. Attorney Paul Kamenar, who is representing Miller, described Mueller on Thursday as “like a U.S. attorney-at-large,” and as a prosecutor with “extraordinary” power and little supervision at the Department of Justice.

The D.C. Circuit panel that heard Thursday’s case included Judges Karen LeCraft Henderson, Judith Rogers and Sri Srinivasan. Henderson is a George H.W. Bush appointee. Rogers was appointed to the court by Bill Clinton, and Srinivasan by Barack Obama.

Srinivasan did not appear ready to take up Kamenar’s position, pressing him with questions about precedent. Henderson did not ask any questions on Thursday.

The arguments were also held a day after the abrupt resignation of Attorney General Jeff Sessions, submitted at the White House’s request. President Donald Trump named Matthew Whitaker, Sessions’ chief of staff, to fill in as acting attorney general.

At the beginning of arguments, Henderson instructed attorneys to argue as if the session were taking place before the previous day’s “events.” She indicated the court would likely ask attorneys for supplemental briefing.

The case arises out of a grand jury subpoena fight involving Miller, who had sought to quash the subpoena served against him as part of the special counsel investigation. Miller has so far refused to comply—he was held in contempt of court this summer—instead focusing on challenging the legitimacy of Mueller’s appointment.

In court briefs, Kamenar has argued Mueller’s appointment as special counsel in May 2017 violated the appointments clause of the U.S. Constitution. Kamenar contends, in part, that Mueller is a principal, not an inferior, officer under the clause.

“Because of his extraordinary powers as a prosecutor, coupled with the lack of supervision and control over this conduct, the Special Counsel, like U.S. Attorneys, was required to be appointed by the President and confirmed by the Senate,” Kamenar wrote in a brief for the appeal.

The special counsel’s office has pointed to the U.S. Supreme Court’s opinion in Morrison v. Olson to defend Mueller’s “inferior officer” status.

There have been multiple efforts to challenge Mueller’s appointment on legal and constitutional grounds. None has succeeded.

Most recently, U.S. District Judge Dabney Friedrich, appointed to the Washington, D.C., federal trial court by Trump, rejected a challenge to Mueller’s appointment brought by Concord Management and Consulting, a Russian troll farm that was indicted earlier this year.

Reed Smith attorney James Martin represented the Russian company, an amicus curiae in the Miller case, during oral argument Thursday.

Even with that help, Kamenar has already indicated they expect to lose. He told a radio show that the court was full of liberals, and that they’re ultimately eyeing an appeal to the U.S. Supreme Court, where they believe they’ll find more favorable reception.

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