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A lawyer challenging the authority of special counsel Robert Mueller asked a federal appeals court to reverse a lower court’s order holding his client, a former associate of Roger Stone, in contempt for refusing to testify before the grand jury hearing matters related to the Russia investigation.
The special counsel’s office — which is investigating Russia’s efforts to influence the 2016 presidential election and any Trump campaign or associates’ ties to those efforts — wants Andrew Miller, who worked for Stone during the campaign, to testify before the grand jury. He has refused to do so thus far, leading the chief judge of the federal district court in Washington, DC, to hold Miller in contempt on Aug. 10.
The order that he go to jail until he agrees to testify, however, is on hold while Miller appeals the contempt order to the US Court of Appeals for the DC Circuit.
The grand jury has heard testimony from several people associated with Stone already, and Stone himself has said he thinks he is “next” on Mueller’s “hit list.”
Paul Kamenar, Miller’s lawyer, argued in a filing early Wednesday that Mueller’s appointment is not authorized by any federal law and that, in any event, a person filling the special counsel’s role would have to be nominated by the president and confirmed by the Senate due to his power.
Even if the appointment of a special counsel is allowed under the law and outside of the presidential nomination process, Kamenar argued, a special counsel would have to be appointed by Attorney General Jeff Sessions — and not Deputy Attorney General Rod Rosenstein, who has been acting as the attorney general in matters related to the Russia investigation since Sessions recused himself last year.
All of the judges who have considered challenges to Mueller’s authority — including both of the judges hearing former Trump campaign chair Paul Manafort’s cases, the judge hearing the case against those accused of being part of the Russian-backed “troll farm” effort, and the judge hearing Miller’s challenge — have sided with Mueller.
Miller’s case is the first of the challenges to be considered in an appeals court.
Kamenar, who previously sought and received two extensions for filing Miller’s brief with the appeals court, missed a deadline set for the end of the day Tuesday, instead filing at 12:01:29 a.m. Wednesday, according to the court’s docket. In addition, the brief lacked several requirements for filings in the DC Circuit, including a table of contents and a table of authorities. At 4:34:11 a.m. Wednesday, he filed an “errata” entry on the docket containing the revised, corrected version of the brief. Kamenar then filed the appendix a little more than two-and-a-half minutes later. Later Wednesday, the court “modified” the “errata” filing to characterize it as a “corrected appellant brief.”