Appeals Court Rejects Rehearing of Mueller Constitutional Challenge

Andrew Miller

On April 29, the U.S. Court of Appeals refused to rehear a constitutional challenge to the appointment and authority of Special Counsel Robert Mueller. The Court did not rule on a related but separate request to decide whether the case was now moot because Mueller has turned in his report. That question was kicked back down to D.C. Circuit Court.

A three-judge panel of the Appeals Court ruled against the plaintiff Andrew Miller on February 26. Miller is a former aide to Roger Stone who has been subpoenaed to appear as a witness before Mueller’s grand jury. He has refused to any questions on the basis that Mueller’s probe is unconstitutional. Miller had sought an en banc rehearing of all eleven judges of the Appeals Court.

Miller is represented by constitutional and appellate lawyer Paul Kamenar on a partial pro bono basis, and is supported by the National Legal and Policy Center.

Kamenar plans to file a motion seeking a stay of the subpoena while he determines his next step, which could include an appeal the Supreme Court. He is also seeking guidance from the U.S. attorney’s office in Washington as to whether it still wants Miller to testify.

It is presumed that prosecutors want Miller’s testimony in regard to Stone, but grand juries are generally precluded from gathering evidence post-indictment, raising the question of why the Miller subpoena is still alive. Mueller has handed off parts of his investigation — like the Stone prosecution — to sitting U.S. Attorneys. It is possible that a new subpoena could be issued for Miller.

Our goal remains the same. We seek a definitive ruling on whether the Mueller operation was constitutional. We feel as though we raised some serious issues that remain unresolved. The Founders understood the problem of deputies appointing deputies. That is why they put the Appointments Clause in the Constitution.