Andrew Miller, a witness in the Russia investigation, today agreed to honor a subpoena issued last year to appear before the grand jury convened by Special Counsel Robert Mueller. The former aide to GOP operative Roger Stone had been refusing to appear on the grounds that Mueller’s appointment and authority were unconstitutional.
Miller’s appearance before the grand jury will effectively end the constitutional challenge to Mueller.
Miller’s challenge went through the U.S. District Court for the District of Columbia, up to the U.S. Court of Appeals for the District of Columbia, and back down to the District Court. Today, District Court Judge Beryl Howell denied a motion by Miller to further stay the subpoena. Miller’s attorney, Paul Kamenar, argued that grand juries are not allowed to gather evidence after an indictment has been made. It has been presumed that the Special Counsel’s interest in Miller pertained to the prosecution of Stone.
Judge Howell conceded Kamenar’s point but ruled that an exception applied, although it is still unclear why prosecutors are still interested in Miller. Mueller’s investigation is over.
On May 21, the Appeals Court denied a motion to stay the subpoena to allow for an appeal to the Supreme Court, probably sealing the fate of the challenge.
In order to allow for a series of appeals, Miller had to be held in Contempt of Court for failing to appear. This involved the risk of incarceration and a great deal of personal courage. All those who wished to see the challenge carried forward owe Miller a debt of gratitude.
Miller is scheduled to appear before the grand jury on Friday. He has never been a target of the investigation, but only a witness. Last year, prior to receiving the subpoena, Miller was voluntarily interviewed for two hours by FBI agents without a lawyer present.
Kamenar has represented Miller on a partial pro bono basis, with the support of the National Legal and Policy Center. He will continue to represent Miller to the absolute end of any legal proceedings involving Miller.
Although no Court affirmed the arguments advanced by Miller, Kamenar produced a series of powerful briefs that are sure to be studied for years to come. We believe that the adverse rulings contribute to a body of law that sets the stage for abuses and overreach by Special Counsels in the future.