Judge Confirms Mueller’s Appointment is Constitutional in Win for Special Counsel

BY Alan Jude Ryland August 2, 2018

A federal judge in Washington has ruled that a former aide to Roger Stone––a longtime confidant of President Donald Trump’s––must testify before the special counsel’s grand jury.

In a 93-page opinion signed July 31, U.S. District Court for the District of Columbia Chief Judge Beryl Howell rejected a challenge from Andrew Miller, a former assistant to Stone, who attempted to block special counsel Robert Mueller’s subpoena for documents and testimony by claiming that Mueller’s appointment was unconstitutional.

Judge Howell conceded that Miller raised “legitimate questions,” but ultimately denied his motion to block the grand jury subpoenas. Although Miller’s attorneys had argued that Mueller “wields too much power with too little accountability” and was unlawfully appointed, Howell’s ruling is largely being touted as a victory for the special counsel:

Here, the witness essentially argues that the Special Counsel wields too much power with too little accountability. Specifically, the witness contends that the Special Counsel was appointed unlawfully, under the Appointments Clause of the Constitution, U.S. CONST. art. II, § 2, cl. 2, because (1) the Special Counsel is a principal rather than inferior officer, and thus was required to be nominated by the President and confirmed by the Senate; (2) no statute authorized the Special Counsel’s appointment, as the Constitution requires; and (3) the Department of Justice official who appointed the Special Counsel lacked authority to do so.

The witness raises legitimate questions, but his concerns are not legally sustainable. The scope of the Special Counsel’s power falls well within the boundaries the Constitution permits, as the Special Counsel is supervised by an official who is himself accountable to the elected President. The witness’s remaining arguments fare no better. Multiple statutes authorize the Special Counsel’s appointment, and the official who appointed the Special Counsel had power to do so. For these reasons, explained in further detail below, the witness’s motion to quash the grand jury subpoenas is denied.

Additionally, Howell ordered Miller to appear for testimony “at the earliest date available to the grand jury, and to complete production of the subpoenaed records promptly.”

“We’re obviously disappointed with the court’s decision,” said Paul Kamenar, one of the attorneys on Miller’s legal team. “We are exploring our options to appeal this decision.”

It remains unclear if and when Miller will appear before the grand jury, but his testimony would add to the list of Stone associates who have appeared, an indication that Mueller is still actively investigating Stone, who has been accused of creating the opportunities for Guccifer 2.0 and other Russian groups to leverage social media by spreading propaganda and misleading news stories to undermine Hillary Clinton’s candidacy. Guccifer 2.0 took credit for the hacking of the Democratic National Committee’s systems, as well as for similar cyber attacks which affected other political party members and organizations. U.S. intelligence officials surmise that Guccifer 2.0 is likely an agent of Russia’s military, if not a persona used by multiple individuals to broadcast information hacked by the GRU, Russia’s foreign military intelligence agency.

President Donald Trump has not yet commented on Howell’s ruling, but a reaction is almost certain, giving his history of attacking and undermining Mueller’s investigation.