So much for the “zombie” appeal that supposedly haunted Robert Mueller’s special-counsel operation — and the hopes for all those prosecuted by it. After taking nearly four months to decide, the DC Circuit appellate court unanimously rejected an appeal by Andrew Miller on his contempt citation for refusing to comply with Mueller’s subpoenas. As it stands now, the Roger Stone associate will face prosecution for contempt or be forced to finally comply with the subpoenas:
In a unanimous ruling, a three-judge panel of the D.C. Circuit Court of Appeals turned aside arguments that Mueller wields so much power as a special prosecutor that he should have been nominated by the president and confirmed by the Senate.
The appeals court judges also found no flaw in Deputy Attorney General Rod Rosenstein’s appointment of Mueller in the wake of the recusal of then-Attorney General Jeff Sessions. The court said that because the attorney general can repeal the regulations used to appoint Mueller at any time, he remains under the control of a Cabinet official.
“Special Counsel Mueller effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate,” Judge Judith Rogers wrote, joined by Judges Sri Srinivasan and Karen Henderson.
Why did it take almost four months to issue this ruling? Analysts wondered whether the three-judge panel had split on the issue, or were wrestling with arcane issues that could turn Mueller’s mandate on its head. Neither seem to be true. It’s a rather straightforward reassessment of Judge Beryl Howell’s ruling in the district court, reached unanimously. It’s an anti-climax on a small scale in an investigation that seems ready to produce more of them on a larger scale, at least so far.
The opinion steps carefully through the case, noting the change of authority at the DoJ in detail. The panel noted that courts have repeatedly ruled that “disability” of a superior officer includes recusals, which made the use of the Attorney General’s authority to appoint Mueller as special counsel entirely legitimate. That appointment makes Mueller an inferior officer and therefore not required to have Senate confirmation to the position of special counsel. Thus …
Our understanding of Congress’s use of the word “disability” in Section 508 accords with courts’ interpretations of Rule 25(a) of the Federal Rules of Criminal Procedure. Rule 25(a) provides that if a judge cannot proceed to preside at a trial due to “death, sickness, or other disability,” another judge may complete the trial. Courts have interpreted “disability” to include recusal. In re United States, 614 F.3d 661, 661 (7th Cir. 2010); United States v. Hall, 171 F.3d 1133, 1153 (8th Cir. 1999); United States v. Sartori, 730 F.2d 973, 976 (4th Cir. 1984); Bennett v. United States, 285 F.2d 567, 572 (5th Cir. 1960). The authorities Miller cites to support his interpretation — the Vacancies Act of 1868 and Moog Inc. v. United States, Misc. No. Civ-90-215E, 1991 WL 46518 (W.D.N.Y. Apr. 1, 1991) — provide no basis to conclude Congress intended a different meaning of “disability” in Section 508(a). In challenging the validity of the analogy on the basis that all federal judges have been appointed by the President with the advice and consent of the Senate, 28 U.S.C. § 133, Miller overlooks that by statute so is the Deputy Attorney General, 28 U.S.C. § 504.
Therefore, the Attorney General’s single-issue recusal is a “disability” that created a vacancy that the Deputy Attorney General was eligible to fill. Miller points to no basis on which this court could conclude that Congress did not intend the term “disability” to have its ordinary meaning. See Russello, 464 U.S. at 21.
Still Miller maintains that Section 508 does not make the Deputy Attorney General an “acting” officer but only authorizes the Deputy Attorney General to perform the duties of the Attorney General’s office and the Attorney General remains the “Head of Department” for Appointments Clause purposes. Congress has authorized the Deputy Attorney General to perform “all the duties of th[e] office” in case of a vacancy, 28 U.S.C. § 508(a), such that the Deputy becomes the “Acting” Attorney General. As to the recused matter, the Acting Attorney General has authority to appoint inferior officers because that is part of the authority that could be exercised by the Attorney General. Miller’s position that the Deputy Attorney General only becomes the “Acting” Attorney General if the Federal Vacancies Reform Act, 5 U.S.C. § 3345, is triggered — and that the Act is triggered, he maintains, only upon a complete inability to perform the functions and duties of the Attorney General’s office — overlooks that the Act explicitly provides it is not the exclusive means to designate an “acting” official. 5 U.S.C. § 3347(a)(1)(B). Other statutes may temporarily authorize an officer or employee to perform the functions and duties of a specified office. Id. Miller does not explain why 28 U.S.C. § 508 is not such a statute that temporarily authorizes an officer to temporarily perform the duties of the Attorney General. See S. Rep. No. 105-250, at 15–16 (1998); see also Noel Canning v. NLRB, 705 F.3d 490, 511 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 (2014). Therefore, Special Counsel Mueller was properly appointed by a head of Department, who at the time was the Acting Attorney General.
Because the Special Counsel is an inferior officer, and the Deputy Attorney General became the head of the Department by virtue of becoming the Acting Attorney General as a result of a vacancy created by the disability of the Attorney General through recusal on the matter, we hold that Miller’s challenge to the appointment of the Special Counsel fails. Accordingly, we affirm the order finding Miller in civil contempt.
Miller’s attorney told reporters that he expected to lose this round and is looking forward to a Supreme Court challenge. It’s tough to see where the appellate court’s reasoning is flawed, however, just as it was tough to see that in Howell’s original ruling. Furthermore, it’s likely moot anyway now that William Barr has taken office and taken over supervision of Mueller. The court notes that Mueller is entirely subject to superior officers such as Barr, who has the authority to remove him or narrow Mueller’s scope of investigation. The Supreme Court will likely have no interest in adjudicating this if Barr doesn’t use his authority to make any changes, let alone the fact that Mueller’s authority looks pretty bulletproof anyway.
Clearly Mueller wasn’t terribly concerned about this challenge, even if some held out hope that his entire effort would get wiped out in court. He indicted Stone last month without Miller’s cooperation, although prosecutors will continue to look for evidence in the case. Unless Miller has something on someone else, this doesn’t promise to meaningfully extend the probe in other directions.
Even Roger Stone doesn’t think that’s a possibility:
However, in an interview with POLITICO, Stone said Miller’s duties for him were so menial that the snag in obtaining his testimony could not have done much to stymie Mueller’s investigators.
“I can’t imagine,” Stone said. “Andrew Miller is a house painter. He did not work for me in ’15 or ’16. He came to the convention mostly to make sure I get out of bed in the morning after staying out too late at night.”
If that’s true, then Miller has to be out of his mind for pushing this issue so hard in the courts. At least the DC Circuit gave him his money’s worth for almost four months.
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