Ruling against Stone associate

Mueller wins again with appeals court ruling against Stone associate

By DARREN SAMUELSOHN, NATASHA BERTRAND and JOSH GERSTEIN

Special counsel Robert Mueller notched yet another legal victory on Monday even though his Russia investigation is over, as a federal appeals court rejected a bid to reexamine a lawsuit questioning the constitutionality of his appointment.

In a one-sentence order, a three-judge panel from the D.C. Circuit Court of Appeals turned back a request for a rehearing of a case it decided in February arguing that Mueller should have been nominated by the president and confirmed by the Senate. Separately, the D.C. Circuit on Monday also denied a petition for a rehearing before the full court.

At issue is a case challenging Mueller’s authority brought by Andrew Miller, who refused to testify before a federal grand jury under subpoena about his former employer, the longtime Trump adviser Roger Stone.

Miller’s attorneys moved to quash the subpoena by citing alleged flaws in Mueller’s appointment but lost in a unanimous opinion that found no flaw in Deputy Attorney General Rod Rosenstein’s May 2017 decision to put the special counsel on the job investigating Russian interference in the 2016 presidential election.

Miller’s attorneys all along have said their primary goal in fighting the Mueller subpoena was to score an audience before the Supreme Court, but the clock may have run out in the process. The special counsel indicted Stone in January on charges of witness tampering and lying to congressional investigators, and then last month concluded his overall Russia investigation.

The court orders issued Monday rejected Miller’s attempt to have the court inquire into whether the dispute might be moot because the grand jury is no longer seeking testimony from the former Stone aide.

Paul Kamenar, a lawyer for Miller, has said that prosecutors told him the wind-down of Mueller’s office did not change the posture of the case and that the grand jury still needed Miller’s testimony.

And since grand juries are not supposed to be used to investigate pending cases, the stance suggests that the grand jury is still investigating something beyond the already-filed false statement and obstruction of justice charges against Stone.

The appeals court’s actions put Miller closer to a choice between going to jail and complying with the grand jury subpoena seeking his testimony. Unless he secures relief from the D.C. Circuit or the Supreme Court, the District Court’s contempt order could effectively kick in in one week.

In an interview Monday after the D.C. Circuit orders came out, Kamenar said he’d be filing a motion seeking a stay while he tries to interest the Supreme Court in the case. He also said he’d reach out to the U.S. attorney’s office in Washington to see whether it still wanted Miller to appear and whether it would issue a new grand jury subpoena.

“It’s still too early to tell how this can shake out,” he said.

Mueller had a run of court victories while probing Russian efforts to influence the 2016 election and whether President Donald Trump obstructed justice to stymie the investigation. The chief judge of the U.S. District Court in D.C. also rejected Miller’s arguments. And federal judges in D.C. and Alexandria, Va., also dismissed narrower challenges to Mueller’s authority during the criminal trial of Paul Manafort, the former Trump campaign chairman.

Judge Greg Katsas, who served as a deputy White House counsel for Trump before being nominated to the bench, recused himself from the order Monday denying full court review. Trump’s other appointee on the D.C. Circuit, Neomi Rao, joined in the decision.