A three-judge panel in the U.S. Court of Appeals for the D.C. Circuit on Tuesday unanimously upheld the legality of Robert Mueller’s appointment as special counsel by then-Acting Attorney General Rod Rosenstein.
Mueller’s appointment was challenged by Roger Stone associate Andrew Miller, who refused to comply with grand jury subpoenas served on him by Mueller’s office, and then appealed an order that held him in contempt.
The unanimous ruling against Miller by federal appeals court judges Karen Henderson, Judith Rogers, and Sri Srinivasan means seven judges have now ruled that Mueller’s appointment was done in accordance with the law. U.S. District Dabney Friedrich, who was appointed by President Trump, had previously ruled that the special counsel’s appointment and powers were legitimate.
Judge T.S. Ellis and Judge Amy Berman Jackson had also upheld Mueller’s appointment. And Chief U.S. District Judge Beryl Howell upheld Mueller’s appointment in the Andrew Miller case that had been appealed to the Court of Appeals for the D.C. Circuit.
Today’s decision represents the highest court to weigh-in thus far, although the case could wind up in front of the Supreme Court.
Andrew Miller, an ex-pot farmer who was swept up in the Mueller probe thanks to his connections to Roger Stone, contended that Mueller was not rightly appointed and that he therefore need not comply with the Mueller grand jury subpoenas. Writing for the Court of Appeals in its unanimous ruling, Judge Rogers wrote that “Special Counsel Mueller was properly appointed” and upheld that Rosenstein was indeed “Acting Attorney General” when he picked Mueller as special counsel.
Rosenstein became acting attorney general in issues related to Russian interference in the 2016 election when then-Attorney General Jeff Sessions recused himself from those matters back in 2017. Miller’s argument against Mueller’s appointment hinged on the idea that the recusal by Sessions did not make Rosenstein acting attorney general, and therefore made Rosenstein’s appointment invalid.
Judge Rogers slapped that argument down by deciding that Sessions’ recusal meant Rosenstein’s assumption of the role as acting attorney general was proper, and that Mueller’s appointment by Rosenstein was also proper.
Mueller had wanted Stone’s associate Miller to testify in connection to the investigation into Russian interference in the 2016 presidential election. Stone pleaded not guilty to charges of lying to Congress, obstruction, and witness tampering. Miller himself could end up facing jail time for contempt of court.
Mueller has pursued criminal investigations against a number of Trump associates, including Roger Stone, Mike Flynn, Paul Manafort, and Michael Cohen, who is testifying in front of Congress this week. Rumors abound that the special counsel’s investigation may be coming to a close soon.
