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Sessions replacement a critic of Mueller probe

The man taking over the Justice Department, following President Trump's firing of Jeff Sessions as attorney general, has been very critical about Robert Mueller's investigation. CNN's Don Lemon reports.

Posted: Nov 8, 2018 7:23 PM
Updated: Nov 8, 2018 7:42 PM

Just one day after the removal of Jeff Sessions as US attorney general created a serious risk to the ongoing independence of Special Counsel Robert Mueller's investigation, lawyers for Mueller are in court on Thursday defending against a lesser-known but potentially potent threat to his mandate as special counsel.

More specifically, they are taking on Andrew Miller in federal court. Among the swirl of names involved in Mueller's ongoing investigation of Russian interference with the 2016 election, Miller thus far has been more of a footnote than a headliner. Now, however, Miller -- backed by a conservative policy group -- is being used as a vehicle for a longshot but high-stakes challenge to Mueller's legal authority as special counsel.

This is a legal Hail Mary. The likelihood of success is low, but if Miller prevails, the impact on Mueller's investigation will be seismic.

Miller has worked for Republican political operative Roger Stone for approximately a decade. While investigating Stone -- who has said publicly that he is "prepared" to be indicted by the special counsel -- Mueller subpoenaed Miller and other Stone associates. While others complied with Mueller's subpoenas and testified in the grand jury, Miller refused. Sensing an opportunity to use the Miller subpoena battle to take a bigger swing at Mueller, a non-profit conservative interest group, the National Legal and Policy Center, took up the cause and is helping to cover Miller's legal fees.

Miller's legal argument, in sum, is that Mueller "wields too much power with too little accountability" and thus has no authority to act as special counsel. Mueller's appointment as special counsel is invalid, Miller has argued in court, because no specific statute authorized the appointment; because Mueller was not appointed by the President and confirmed by the Senate; and because Mueller was appointed not by the then-Attorney General (Jeff Sessions, who had recused himself) but rather by the Deputy Attorney General (Rod Rosenstein, who by succession filled in for Sessions following the recusal). Hence, Miller claims that Mueller has no authority to issue grand jury subpoenas, or to do anything else for that matter.

At least one person agrees with Miller: President Donald Trump tweeted in June that "[t]he appointment of the Special Counsel is totally UNCONSTITUTIONAL!"

Unfortunately for Miller, no judge has agreed with him yet. In August, Federal District Court Judge Beryl Howell firmly rejected Miller's argument, requiring him to comply with the subpoena and testify in the grand jury. Three other federal judges, including one nominated by President Trump, similarly have rejected claims that Mueller was improperly appointed or exceeded the scope of his mandate as Special Counsel.

Even after Judge Howell ordered Miller to comply with the subpoena, he still refused. Accordingly, Judge Howell held Miller in contempt, which can lead to imprisonment. However, Judge Howell agreed to stay the contempt ruling to enable Miller to appeal without having to sit in jail awaiting the outcome. Judge Howell offered a glimmer of hope for Miller, stating that his challenge "raises legitimate questions..."

The case now heads to the DC Circuit Court of Appeals, where attorneys for Miller and Mueller will argue the case to a three-judge panel. Miller's chances of success in the DC Circuit look slim. Miller's own attorney stated recently that "I don't know whether I will win in that court. Quite frankly, I'm not expecting to."

However, the fight won't necessarily end with the DC Circuit. If Miller loses, he almost certainly will seek to bring the case to the United States Supreme Court. The Supreme Court agrees to hear only a miniscule fraction of the cases in which a party seeks review -- typically below 3% -- and it requires a vote of four of the nine justices to take on a case.

Miller's attorney, however, sees some hope given the recent confirmation of Justice Brett Kavanaugh. "He would be a good ally because he has talked about these cases before in terms of presidential power and also limiting the power of the government in many cases and he's also written about this very issue of the constitutionality of the independent counsel," Miller's attorney said after Kavanaugh's nomination.

What happens if the Miller gambit succeeds? Suddenly, Mueller would be stripped of his legal authority as special counsel. That would not necessarily mean the jailhouse gates will be thrown open and that those who already have been charged and convicted -- Michael Flynn, Paul Manafort, Rick Gates, George Papadopoulos and company -- walk free. It seems unlikely that a ruling stripping Mueller's authority would apply retroactively, so those folks should not hold their breath.

The big question is: what happens to Mueller's investigation going forward? Mueller has more business to do. The Department of Justice could pick up the Mueller investigation and run it out of its own Public Integrity Section or Computer Crime Section. Of course, those sections are part of DOJ and likely could not exercise the same level of independence as Mueller has as special counsel.

Mueller's work also could be picked up by US Attorney's offices. Mueller already has farmed out pieces of the investigation to US attorneys in the Southern District of New York and the District of Columbia. While US Attorney's offices traditionally enjoy significant independence, they nonetheless are part of DOJ and would be subject to oversight by the Attorney General and others in the DOJ hierarchy. The primary point of Mueller's appointment as special counsel was to place him beyond the normal reach of politics from within or outside DOJ.

State attorney generals in New York and elsewhere also could take on certain pieces of Mueller's investigation. But state attorney generals inherently face geographical and legal limitations. Some part of the crime must have been committed within the state, and conduct is chargeable only if it violates state laws -- which typically do not apply to conspiring with foreign nationals to influence federal elections, for example, among other conduct of likely interest to Mueller.

Any effort to pick up some of Mueller's work would be piecemeal, and the investigation as a whole surely would suffer because of the fragmentation. Crucially, if Mueller vanishes, then it is unclear who -- if anybody -- would be in a position to furnish to Congress a report on the findings of the investigation as a whole. Without such a report, there would be no formal or concrete basis on which Congress or the public could evaluate the investigation, and nothing on which to base a determination on potential impeachment.

Miller's legal challenge to Mueller is about much more than one subpoena. It is about Mueller's fundamental legitimacy as special counsel. If Mueller prevails in this legal battle, then his legitimacy will be confirmed once again. But if Miller pulls out an unlikely win, then everything will change for Mueller -- suddenly and dramatically.

Minnesota Coronavirus Cases

Data is updated nightly.

Cases: 270157

Reported Deaths: 3297
CountyCasesDeaths
Hennepin579261084
Ramsey24528470
Anoka19211213
Dakota18738176
Washington12351104
Stearns1200389
Scott735654
St. Louis712297
Wright646135
Olmsted604730
Sherburne499538
Clay435954
Carver397312
Blue Earth367011
Rice350331
Kandiyohi337613
Crow Wing306729
Nobles293828
Chisago27778
Benton256338
Otter Tail251415
Winona240928
Mower232822
Polk222221
Douglas211929
Morrison207521
Lyon189810
McLeod18089
Beltrami177115
Goodhue173126
Becker16769
Itasca165223
Steele16396
Todd161412
Isanti159115
Carlton148310
Nicollet144523
Freeborn13625
Mille Lacs129030
Le Sueur12899
Waseca128710
Pine11625
Cass11538
Brown112610
Meeker10117
Martin97020
Roseau9443
Hubbard92822
Wabasha8961
Dodge7770
Watonwan7604
Redwood75118
Chippewa7437
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Sibley6844
Cottonwood6800
Wadena6706
Pipestone65618
Aitkin64722
Rock6259
Houston6012
Fillmore5910
Yellow Medicine55310
Unassigned52756
Murray5173
Pennington5076
Kanabec49711
Swift4835
Faribault4650
Pope4620
Stevens4342
Clearwater4156
Marshall4047
Jackson3981
Lake3463
Koochiching3275
Wilkin3175
Lac qui Parle3123
Lincoln3081
Norman3006
Big Stone2711
Mahnomen2404
Grant2256
Red Lake1833
Kittson1786
Traverse1190
Lake of the Woods821
Cook570

Iowa Coronavirus Cases

Data is updated nightly.

Cases: 210482

Reported Deaths: 2173
CountyCasesDeaths
Polk31270322
Linn13252158
Scott1022075
Black Hawk10209126
Woodbury9870111
Johnson900835
Dubuque866490
Story637819
Dallas595555
Pottawattamie574666
Sioux349925
Webster330928
Marshall327841
Cerro Gordo323041
Clinton303637
Buena Vista290214
Muscatine266964
Des Moines266116
Plymouth257937
Warren254610
Wapello239971
Jones221112
Jasper202739
Marion191518
Carroll188220
Lee188015
Bremer176012
Henry16847
Crawford168215
Benton157414
Tama145140
Jackson13608
Delaware134721
Boone127711
Washington126513
Dickinson126210
Mahaska119027
Wright11425
Buchanan10789
Page10774
Hardin105810
Clay10434
Harrison101428
Clayton10084
Cedar98913
Hamilton9877
Mills9806
Calhoun9787
Fayette9588
Lyon9458
Floyd92614
Kossuth9214
Poweshiek91512
Butler8943
Winneshiek88910
Winnebago87423
Iowa86711
Louisa79916
Hancock7947
Chickasaw7853
Grundy77310
Sac7617
Cherokee7484
Cass73519
Appanoose7336
Shelby7184
Allamakee71111
Mitchell7074
Emmet70123
Guthrie69215
Union6866
Franklin67619
Humboldt6495
Madison6414
Jefferson6121
Palo Alto6044
Unassigned5810
Keokuk5237
Pocahontas5072
Howard4999
Osceola4941
Greene4860
Clarke4564
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Davis4225
Taylor4162
Adair4066
Monona3912
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