‘Unwelcome Surprise’ for Mueller?

The U.S. Court of Appeals has not yet ruled on the constitutional challenge to Special Counsel Robert Mueller by Andrew Miller. The case was argued on November 8. We had expected a decision much sooner and certainly by now.

So what is going on? The short answer is that we do not know. But the delay has led to speculation by reporters who are covering the story. On Monday Josh Gerstein wrote this in Politico:

A wait of more than three months for the first appeals court ruling on the legality of special counsel Robert Mueller’s appointment is fueling suspicion among court watchers that the decision might contain an unwelcome surprise for Mueller’s team.

We have never predicted that Miller would win at this level, the second highest court in the land. Miller’s attorney, Paul Kamenar, has said that the case may reach the Supreme Court. A loss could yield a convincing dissent or even a concurring opinion that concedes some of Miller’s points. As Gerstein continues in Politico:

…just a single judge expressing criticism of any aspect of Mueller’s appointment or conduct is sure to be seized on by President Donald Trump and his allies as fresh evidence that Mueller’s installation as special counsel was illegitimate.

Gerstein also points out that the case is not necessarily on the slow track:

Measured against a typical D.C. Circuit case, the pace of the Miller appeal is not particularly sluggish. The median wait for a decision in a case argued at the D.C. Circuit is 3.1 months, according to data released last year by the Administrative Office of the U.S. Courts.

However, the court typically treats grand jury cases with greater urgency than other disputes, since the lack of testimony or records from a particular witness can sometimes impair an ongoing investigation. And the court initially seemed intent on moving the Miller case along quickly.

An expedited briefing schedule was set just two days after the appeal was docketed last August. The Nov. 8 argument date also vaulted the case ahead of many others pending at the court.

Why the Court seemed eager to tackle the case, and then did not soon after rule, we are unsure. It could indeed be because of disagreements between the three judges. We will just have to wait for the decision.

Kamenar represents Miller on a partial pro bono basis, and is supported in this litigation by the National Legal and Policy Center.