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Mueller power questioned in first post-Sessions court hearing

POLITICO logo POLITICO 11/8/2018 By Darren Samuelsohn, Josh Gerstein and Theodoric Meyer
a man in a suit standing in front of a building: Challenges to Robert Mueller’s authority to date have gone nowhere. © Andrew Harnik, File/AP Photo Challenges to Robert Mueller’s authority to date have gone nowhere.

A drive to derail special counsel Robert Mueller’s probe into the Trump campaign was taken up by a powerful federal appeals court Thursday as a three-judge panel heard arguments that the special prosecutor’s appointment last year was legally flawed and unconstitutional.

The judges heard an appeal from a former aide to Trump adviser Roger Stone, Andrew Miller, who resisted a grand jury subpoena in order to create a legal vehicle to challenge Mueller’s authority to continue his year-and-a-half long probe into alleged collusion between the Trump political operation and Russia during the 2016 presidential race.

The arguments Thursday marked the first public outing for members of the special counsel’s team since Democrats won future control of the House in the November midterms and Trump fired Attorney General Jeff Sessions and gave the investigators a new boss: acting Attorney General Matt Whitaker.

Before the lawyers said a word, the senior member of the panel, Judge Karen Henderson, said the judges had decided to set aside Sessions’ departure — for now.

“Argue this case as if it was being argued yesterday morning,” said Henderson, an appointee of President George H.W. Bush.

However, Henderson signaled that the developments might well impact the legal issues around Mueller’s authority. “We will most likely be asking for supplemental briefing,” she said.

Miller lawyer Paul Kamenar declared early in his presentation that Mueller has a troubling amount of power, far exceeding that of a typical federal prosecutor.

“The special counsel does exercise extraordinary prosecutorial and governmental powers,” Kamenar told the judges. “He can bring indictments in multiple jurisdictions. He’s like a U.S. attorney at large.”

Kamenar’s argument focused largely on the regulations under which Mueller was appointed. Miller’s attorney complained that they appear to give a special counsel “free rein” about how to conduct his probe.

“He can indict without consulting the acting attorney general,” Kamenar said.

Deputy Solicitor General Michael Dreeben, who represents Mueller’s office, told the appeals court that Kamenar was wrong to suggest that Mueller can essentially set his own course and decide when he needs to tell Rosenstein about any plans for or developments in the probe.

“I think the court may have been given a slightly different impression than the way the regulations actually operate,” Dreeben declared. “We are therefore required to submit reports to the acting attorney general in accordance with Department of Justice urgent report guidelines. ... Major events in investigations are reported up the chain of command.”

“The acting attorney general can ask the special counsel for explanation of any investigatory step,” Dreeben added. “He’s aware of what we’re doing. ... It’s not the case that the special counsel is off wandering in a free-floating environment and can decide when to report.”

Judge Judith Rogers said the regulations may not capture how Mueller’s investigation was being overseen, raising the possibility he was being more closely supervised than the rules may require.

“It doesn’t say under no circumstances shall the deputy attorney general ask for more reporting,” said Rogers, an appointee of President Bill Clinton. “The way I read the record is we just don’t know what is going on.”

Kamenar suggested the appeals court might want to send the case back to a district court judge to explore how tightly Mueller was being supervised.

“Maybe the district court should have a chance to take some record evidence to see the proof in the pudding in terms of supervision [and] what’s going on,” he said.

Still, Miller’s attorneys have signaled they want to see this case taken all the way to the Supreme Court. Trump seemed to give tacit approval to the legal challenge in August when he told Bloomberg News that he viewed Mueller’s operation as unlawful.

“I view it as an illegal investigation," he said, alluding to unnamed "great scholars" who say that "there never should have been a special counsel.”

During a press conference outside the courthouse, Kamenar said he expected the Supreme Court to rule in Miller’s favor if the case makes it there. “We believe at that point, with this current bench, that they would find that Mueller is basically acting as a rogue type of a prosecutor,” he said, alluding to the recent confirmation of Justice Brett Kavanaugh.

But the road to the Supreme Court is likely to take months. If Miller loses his case before the three-judge panel, Kamenar said he might petition the entire appeals court to rehear the case. That would mean the case wouldn’t reach the Supreme Court until springtime at the earliest, he said.

Challenges to Mueller’s authority to date have gone nowhere. In May, federal judges presiding over separate criminal cases against Paul Manafort in Washington and Alexandria, Va., issued rulings rejecting the former Trump campaign chairman’s bids to toss out the charges by claiming the special counsel’s appointment was flawed.

And in August another Washington-based federal judge turned down an attempt by the Russian company Concord Management to challenge Mueller’s jurisdiction after the firm was charged in connection with a Kremlin-linked online troll farm accused of targeting the 2016 American election.

Concord attempted to intervene in Miller’s appeal and also filed an appeal of its own, but later abandoned that. The appeals court turned down Concord’s attempt to join Miller’s appeal, but agreed to allow the Russia-based firm to take part in the case with a friend-of-the-court status.

Concord attorney James Martin said Rosenstein lacked any authority in the law to appoint someone from outside the Justice Department, like Mueller, to serve as a special counsel.

However, Judge Sri Srinivasan alluded to the fact that he previously served as deputy solicitor general and no specific law authorizes the hiring of someone to serve in that capacity.

“There is no statute that provides for a deputy solicitor general,” noted Srinivasan, an appointee of President Barack Obama.

Kamenar, Miller's attorney, picked up on this theme Thursday, arguing Sessions should have appointed the special counsel even though he was recused from the case.

"He cannot recuse himself from his constitutional duty to appoint the investigators any more than the president can say, ‘I’m recused from appointing the GSA director because I own property subject to his jurisdiction,’” Miller’s attorney said.

Miller himself, who lives in St. Louis, wasn’t in the courtroom on Friday. Dreeben and another prosecutor working for Mueller, Adam Jed, represented the special counsel. Dreeben appeared relaxed after he concluded his argument, leaning over to whisper something in Jed’s ear as he raised his eyebrows and smiled.

Legal experts have their doubts that Thursday’s case will shut down Mueller’s probe.

“I think just like every one of these arguments that’s been made it’s going to fail,” Dan Goldman, a former federal prosecutor who attended the Manafort trial as an MSNBC contributor, told POLITICO. “I see this as a dead loser for Miller.”

Miller’s attorneys have also predicted they expect to lose the round in front of the D.C. Circuit.

“That court is populated with a lot more liberal Obama appointed judges,” Kamenar said last month during an appearance on a radio show hosted by Michael Caputo, a former Trump aide who has also been questioned in the Russia probe.

“I don’t know whether I will win in that court. Quite frankly, I’m not expecting to,” Kamenar added.

He said as much again after arguments on Thursday.

“I think it’s gonna be hard to get two [of the three] judges ruling in our favor based on the way the arguments” went, Kamenar said. “But you never know.”

Mueller’s interest in Miller stems from the wider probe into Roger Stone, the longtime Trump associate who has said he’s preparing for a federal indictment.

About a dozen Stone associates have been questioned to date in the special counsel investigation, including Sam Nunberg and Kristin Davis, the former prostitution ring manager known as the “Manhattan Madam.”

Caputo, who also has been interviewed in the Mueller probe and by congressional investigators, said last month during the radio show that he’s long known Miller and his family and helped connect the Stone aide with his attorneys for the constitutional challenge.

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