A federal appeals court in Washington on Monday rejected a challenge to special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s appointment that was brought by Roger StoneRoger Jason StoneFive tantalizing questions about Mueller’s investigation Mueller pushes back on Stone’s claim CNN was tipped off about arrest Mueller won’t deliver report to Justice Dept. next week MORE associate Andrew Miller.
“Because the Special Counsel is an inferior officer, and the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General as a result of a vacancy created by the disability of the Attorney General through recusal on the matter, we hold that Miller’s challenge to the appointment of the Special Counsel fails,” Judge Judith Rogers wrote in the U.S. Court of Appeals for the D.C. Circuit’s unanimous opinion.
The court also upheld a district court order holding Miller in contempt for refusing to testify before the grand jury in Mueller’s investigation into Russian meddling in the 2016 presidential election and possible collusion with the Trump campaign.
In appealing the district court ruling, Miller argued Mueller’s appointment was unlawful under the Appointments Clause of the Constitution.
He claimed the special counsel is a principal officer who was not appointed by the president with the advice and consent of the Senate; Congress did not “by law” authorize the special counsel’s appointment; and the special counsel was not appointed by a “head of Department.”
Following then-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump says he hasn’t spoken to Barr about Mueller report Ex-Trump aide: Can’t imagine Mueller not giving House a ‘roadmap’ to impeachment Rosenstein: My time at DOJ is ‘coming to an end’ MORE‘s recusal from the Russia investigation, Deputy Attorney General Rod RosensteinRod Jay RosensteinRosenstein says public should trust Barr on Mueller report ‘Dear Attorney General Barr’: Advice from insiders The Hill’s Morning Report – A pivotal week for Trump MORE was acting as head of the department when he appointed Mueller, the court said.
Stone, for whom Miller worked, was recently indicted on seven charges stemming from Mueller’s investigation, including obstruction of a congressional inquiry, witness tampering and five counts of making false statements to Congress. He has pleaded not guilty.