WASHINGTON – Lawyers for a witness cited for contempt in the Russia investigation asked a federal appeals court to upend the probe on Thursday, arguing that Robert Mueller should never have been appointed to run it.
Lawyers for witness Andrew Miller, an associate of Roger Stone, argued that federal law doesn’t permit the Justice Department to hand broad law enforcement power to an outside lawyer, and that officials within the department hadn’t supervised him closely enough.
Mueller’s office argued that federal law – and federal courts – have long approved of that practice.
Four lower-court judges already have rejected five similar challenges to Mueller’s authority. But Thursday’s argument was the first time it had been presented to a federal court of appeals.
The three judges on the panel of the U.S. Court of Appeals for the D.C. Circuit gave no indication that they had been persuaded. No deadline was set for a decision.
Judge Karen Henderson told lawyers to argue the case as if the firing of Attorney General Jeff Sessions hadn’t occurred Wednesday, and that more written arguments may be required.
“We will most likely be asking for supplemental briefing,” Henderson said.
Sessions had recused himself from the Russia investigation after working on Trump’s campaign. Deputy Attorney General Rod Rosenstein appointed Mueller in place of Sessions, after Trump fired FBI Director James Comey in May 2017 for investigating Russian interference in the 2016 election.
Trump has criticized Mueller’s investigation repeatedly as a “witch hunt." The case was argued literally the day after Trump replaced Sessions with Acting Attorney General Matthew Whitaker, who has said Mueller should limit his investigation.
The panel heard more than an hour of arguments involving a contempt citation issued in August for Miller, who refused to testify before a grand jury. Miller served briefly as an assistant to Stone, a longtime associate of Trump, reportedly handling media interviews during the 2016 campaign.
Miller’s lawyer, Paul Douglas Kamenar, argued that prosecutors have some of the most powerful jobs in government because of their authority to indict and imprison. The power shouldn’t be granted to a special counsel, a post created in regulation rather by Congress in statute, he said.
To hold such power, the post should be appointed by the attorney general rather than the deputy attorney general acting in his place, Kamenar said. And to exercise that power, Rosenstein should have more direct supervision over Mueller than receiving occasional reports, he said.
“There’s no real supervision going on,” Kamenar said. “That’s what this case is about: political accountability.”
James Martin, a lawyer for a Russian company charged with helping to orchestrate a social media campaign targeting the 2016 election, Concord Management and Consulting LLC, urged the court to rule that Congress had never authorized the hiring of special counsels, and that without its permission, any appointment would be invalid.
“There is no statutory authority for this appointment,” he said.
But Michael Dreeben, a deputy solicitor who is working on Mueller’s staff, cited laws dating to 1870 allowing for the department to hire special prosecutors that were updated and modified repeatedly. Court decisions repeatedly upheld the post in previous scandals such as Watergate in the 1970s, he said.
The special counsel post was created by regulation to distinguish it from the more free-wheeling independent counsel that was legislated to operate outside the department, he said. Special counsels report to whoever is acting as attorney general for a case, and they can consult with department lawyers, he said.
Dreeben said Mueller couldn’t act “in a free-floating environment.”
“The regulation brought everything in-house and was designed to strike a balance” between independence and oversight, Dreeben said. “It doesn’t exist on an island.”
Henderson didn’t ask questions during the hearing scheduled for a half-hour that ran longer than an hour.
Judge Sri Srinivasan focused his questions to Kamenar on whether changing the order that appointed Mueller to allow him to be fired more easily would remedy Miller’s concerns.
Kamenar argued that only the attorney general could appoint Mueller, not Rosenstein. Previous court decisions mean that Rosenstein “can handle the investigation part, but not the appointment part,” he said.
Srinivasan also asked Martin whether other posts in the department that aren’t specifically spelled out in statute, such as deputy solicitor general, a post he held before taking the bench, are also unauthorized.
Martin said other statutes allow for appointments such as deputy solicitors general. “That’s what was missing in this case,” he said.
Judge Judith Rogers questioned the lack of evidence submitted about how much oversight Rosenstein is providing.
She also questioned Miller’s lawyers about how the department could fill numerous posts that aren’t designated in statute.
No deadline was set for the panel to make a decision.