Democracy Dies in Darkness

Special counsel Robert Mueller’s team defends legitimacy of his appointment

November 19, 2018 at 4:38 PM

Special counsel Robert S. Mueller III is investigating Russian interference in the 2016 presidential campaign. (Saul Loeb/AFP/Getty Images)

The elevation of Matthew G. Whitaker to acting attorney general does not affect special counsel Robert S. Mueller III’s eligibility to lead the investigation into Russian interference in the 2016 presidential election, Mueller’s team said in a court filing Monday.

The special counsel’s office was responding to an inquiry from the U.S. Court of Appeals for the D.C. Circuit in a case brought by Andrew Miller, an associate of Roger Stone, a longtime adviser to President Trump.

The case challenges the constitutionality of Mueller’s position and centers on who is doing what job at the Justice Department and oversight of the 18-month-long probe.

After oral argument this month, a three-judge panel asked Mueller and Miller to address implications for the case of the forced resignation of Jeff Sessions as attorney general — and the president’s selection of Whitaker to succeed him until a permanent attorney general is chosen. Whitaker is now supervising the special counsel probe and facing separate court challenges over whether his appointment is valid.

“The designation has no effect on the case,” Mueller’s team said of Whitaker’s new position. “The validity of the Special Counsel’s appointment” in May 2017 “cannot be retroactively affected by a change in the official who is serving as the Acting Attorney General.”

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President Trump said Nov. 18 he would not stop acting attorney general, Matthew G. Whitaker, if he decides to curtail the special counsel probe. (Elyse Samuels /The Washington Post)

Related: [Roger Stone associate challenges Mueller's special counsel appointment]

Miller, the former Stone assistant, is trying to block a grand jury subpoena from Mueller and has refused to testify.

His attorney said Monday that Whitaker replacing Sessions does not affect Miller’s argument that Mueller was named unlawfully, in violation of the appointments clause of the Constitution. The special counsel’s prosecutorial powers are too broad and the office is not subject to “substantial supervision and oversight,” according to Miller’s attorney, Paul D. Kamenar.

Mueller was appointed in May 2017 by Deputy Attorney General Rod J. Rosenstein after Trump fired James B. Comey, the FBI director. Rosenstein got involved because Sessions had recused himself from matters involving Trump’s presidential campaign. Mueller’s team detailed in court how Rosenstein, who was confirmed by the Senate, has directly supervised the investigation, as envisioned under the special counsel guidelines.

The three-judge panel of the D.C. Circuit must answer the specific question of whether Mueller is a “principal officer,” requiring appointment by the president and Senate confirmation, or an “inferior” one, who can be appointed by the head of a department. The panel is made up of Judges Karen LeCraft Henderson, Judith W. Rogers and Sri Srinivasan.

In recent rulings, two district court judges in Washington — one nominated by a Democrat, the other by Trump — have upheld the constitutionality of Mueller’s appointment.

Related: [Whitaker's opponents take legal challenge to Supreme Court]

Whitaker, who previously served as Sessions’s chief of staff, is facing his own legal challenges and calls from Democrats to recuse himself from overseeing the special counsel’s investigation because of Whitaker’s past criticism of the probe.

Maryland Attorney General Brian E. Frosh (D) said in a court filing last week that Whitaker does not have the legal authority to run the Justice Department if he is not Senate-confirmed. Three Senate Democrats filed a similar complaint in federal court in Washington on Monday.

The Justice Department on Monday defended Trump’s designation of Whitaker as acting attorney general as lawful and supported by past practice, court rulings and legal analysis — in addition to the appointments clause of the Constitution and federal statute.

An analysis by the department’s Office of Legal Counsel last week said senior officials like Whitaker can serve for up to seven months, or longer if a nomination for a permanent successor is sent to the Senate.

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Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland.

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