“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,” Judge Judith Rogers wrote in the U.S. Court of Appeals for the D.C. Circuit’s unanimous opinion.
The court also upheld a district court order holding Miller in contempt for refusing to testify before the grand jury in Mueller’s investigation into Russian meddling in the 2016 presidential election and possible collusion with the Trump campaign.
In appealing the district court ruling, Miller argued Mueller’s appointment was unlawful under the Appointments Clause of the Constitution.
He claimed the special counsel is a principal officer who was not appointed by the president with the advice and consent of the Senate; Congress did not “by law” authorize the special counsel’s appointment; and the special counsel was not appointed by a “head of Department.”
Following then-Attorney General Jeff Sessions‘s recusal from the Russia investigation, Deputy Attorney General Rod Rosenstein was acting as head of the department when he appointed Mueller, the court said.
Stone, for whom Miller worked, was recently indicted on seven charges stemming from Mueller’s investigation, including obstruction of a congressional inquiry, witness tampering and five counts of making false statements to Congress. He has pleaded not guilty.