Mueller appointment ruled constitutional

WASHINGTON — A federal judge on Monday upheld the constitutionality of special counsel Robert Mueller’s appointment, finding that Deputy Attorney General Rod Rosenstein lawfully named Mueller in May 2017.

The ruling came in a challenge brought by a Russian firm accused of funding an Internet trolling operation that targeted U.S. voters in 2016.

Judge Dabney Friedrich of the U.S. District Court for the District of Columbia, a 2017 appointee of President Donald Trump, was the latest trial-level judge to cast doubt on arguments about the validity of Mueller’s appointment.

Some advocates have said they are seeking to get an appeal before the U.S. Supreme Court.

Friedrich became the second federal judge to find that higher-court precedents “make clear that the Acting Attorney General has the necessary statutory authority” to name a special counsel under the appointments clause of the U.S. Constitution.

Rosenstein is overseeing the investigation into Russian interference in the 2016 election after Attorney General Jeff Sessions recused last year.

Attorneys for Concord Management and Consulting argued in the case that the appointments clause requires that the special counsel either be a “principal officer” nominated by the president and confirmed by the Senate, or be put in place only after Congress passes a law specifically allowing the deputy attorney general to confer the attorney general’s prosecutorial authority on an “inferior officer.”

Concord has pleaded innocent to charges that it conspired to obstruct the 2016 U.S. election by funding a coordinated social media propaganda campaign run by Russia’s Internet Research Agency. The campaign aimed to push voters toward Trump and away from Democratic rival Hillary Clinton, U.S. authorities said.

Friedrich ruled in a 41-page opinion that the special counsel is an inferior officer subject to the direction and supervision of the acting attorney general, who may rescind or revise the rules governing his work and who “moreover … has the power to remove the Special Counsel at will.”

“Congress vested the Acting Attorney General with the power to appoint the Special Counsel,” Friedrich added, saying past federal court rulings, including by the Supreme Court, have made clear that authority “even though no statute explicitly authorizes” it.

Friedrich’s ruling tracked with a July 31 decision by Chief U.S. District Judge Beryl Howell in Washington, D.C., who rejected a similar challenge by a witness seeking to quash a subpoena to appear before a grand jury as part of Mueller’s investigation.

In demanding witness Andrew Miller’s testimony, Howell, an appointee of President Barack Obama, concluded that “the Special Counsel’s power falls well within the boundaries the Constitution permits.”

A third case involved U.S. District Judge T.S. Ellis III of Alexandria, Va., a Ronald Reagan appointee who is overseeing the tax- and bankfraud trial of Paul Manafort, Trump’s former presidential campaign chairman. Ellis was not asked to rule directly on the constitutional question, but he noted in a separate opinion in Manafort’s case that “such an objection would likely fail.”

Manafort faces a second trial in Washington, D.C. District Judge Amy Berman Jackson, an Obama appointee, dismissed defense motions to find Mueller’s appointment in conflict with the Justice Department’s special counsel regulations or that he exceeded his authority.

Attorneys for Miller, a former aide to Trump confidant Roger Stone, said they planned to appeal the issue Monday. Howell formally found Miller in contempt Friday after he refused to appear before the grand jury.

“None of these questions are easy. That’s why we think it’s headed to the Supreme Court,” said Paul Kamenar, an attorney for Miller.