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Sessions replacement a critic of Mueller probe

The man taking over the Justice Department, following President Trump's firing of Jeff Sessions as attorney general, has been very critical about Robert Mueller's investigation. CNN's Don Lemon reports.

Posted: Nov 8, 2018 7:42 PM
Updated: Nov 8, 2018 7:42 PM

Just one day after the removal of Jeff Sessions as US attorney general created a serious risk to the ongoing independence of Special Counsel Robert Mueller's investigation, lawyers for Mueller are in court on Thursday defending against a lesser-known but potentially potent threat to his mandate as special counsel.

More specifically, they are taking on Andrew Miller in federal court. Among the swirl of names involved in Mueller's ongoing investigation of Russian interference with the 2016 election, Miller thus far has been more of a footnote than a headliner. Now, however, Miller -- backed by a conservative policy group -- is being used as a vehicle for a longshot but high-stakes challenge to Mueller's legal authority as special counsel.

This is a legal Hail Mary. The likelihood of success is low, but if Miller prevails, the impact on Mueller's investigation will be seismic.

Miller has worked for Republican political operative Roger Stone for approximately a decade. While investigating Stone -- who has said publicly that he is "prepared" to be indicted by the special counsel -- Mueller subpoenaed Miller and other Stone associates. While others complied with Mueller's subpoenas and testified in the grand jury, Miller refused. Sensing an opportunity to use the Miller subpoena battle to take a bigger swing at Mueller, a non-profit conservative interest group, the National Legal and Policy Center, took up the cause and is helping to cover Miller's legal fees.

Miller's legal argument, in sum, is that Mueller "wields too much power with too little accountability" and thus has no authority to act as special counsel. Mueller's appointment as special counsel is invalid, Miller has argued in court, because no specific statute authorized the appointment; because Mueller was not appointed by the President and confirmed by the Senate; and because Mueller was appointed not by the then-Attorney General (Jeff Sessions, who had recused himself) but rather by the Deputy Attorney General (Rod Rosenstein, who by succession filled in for Sessions following the recusal). Hence, Miller claims that Mueller has no authority to issue grand jury subpoenas, or to do anything else for that matter.

At least one person agrees with Miller: President Donald Trump tweeted in June that "[t]he appointment of the Special Counsel is totally UNCONSTITUTIONAL!"

Unfortunately for Miller, no judge has agreed with him yet. In August, Federal District Court Judge Beryl Howell firmly rejected Miller's argument, requiring him to comply with the subpoena and testify in the grand jury. Three other federal judges, including one nominated by President Trump, similarly have rejected claims that Mueller was improperly appointed or exceeded the scope of his mandate as Special Counsel.

Even after Judge Howell ordered Miller to comply with the subpoena, he still refused. Accordingly, Judge Howell held Miller in contempt, which can lead to imprisonment. However, Judge Howell agreed to stay the contempt ruling to enable Miller to appeal without having to sit in jail awaiting the outcome. Judge Howell offered a glimmer of hope for Miller, stating that his challenge "raises legitimate questions..."

The case now heads to the DC Circuit Court of Appeals, where attorneys for Miller and Mueller will argue the case to a three-judge panel. Miller's chances of success in the DC Circuit look slim. Miller's own attorney stated recently that "I don't know whether I will win in that court. Quite frankly, I'm not expecting to."

However, the fight won't necessarily end with the DC Circuit. If Miller loses, he almost certainly will seek to bring the case to the United States Supreme Court. The Supreme Court agrees to hear only a miniscule fraction of the cases in which a party seeks review -- typically below 3% -- and it requires a vote of four of the nine justices to take on a case.

Miller's attorney, however, sees some hope given the recent confirmation of Justice Brett Kavanaugh. "He would be a good ally because he has talked about these cases before in terms of presidential power and also limiting the power of the government in many cases and he's also written about this very issue of the constitutionality of the independent counsel," Miller's attorney said after Kavanaugh's nomination.

What happens if the Miller gambit succeeds? Suddenly, Mueller would be stripped of his legal authority as special counsel. That would not necessarily mean the jailhouse gates will be thrown open and that those who already have been charged and convicted -- Michael Flynn, Paul Manafort, Rick Gates, George Papadopoulos and company -- walk free. It seems unlikely that a ruling stripping Mueller's authority would apply retroactively, so those folks should not hold their breath.

The big question is: what happens to Mueller's investigation going forward? Mueller has more business to do. The Department of Justice could pick up the Mueller investigation and run it out of its own Public Integrity Section or Computer Crime Section. Of course, those sections are part of DOJ and likely could not exercise the same level of independence as Mueller has as special counsel.

Mueller's work also could be picked up by US Attorney's offices. Mueller already has farmed out pieces of the investigation to US attorneys in the Southern District of New York and the District of Columbia. While US Attorney's offices traditionally enjoy significant independence, they nonetheless are part of DOJ and would be subject to oversight by the Attorney General and others in the DOJ hierarchy. The primary point of Mueller's appointment as special counsel was to place him beyond the normal reach of politics from within or outside DOJ.

State attorney generals in New York and elsewhere also could take on certain pieces of Mueller's investigation. But state attorney generals inherently face geographical and legal limitations. Some part of the crime must have been committed within the state, and conduct is chargeable only if it violates state laws -- which typically do not apply to conspiring with foreign nationals to influence federal elections, for example, among other conduct of likely interest to Mueller.

Any effort to pick up some of Mueller's work would be piecemeal, and the investigation as a whole surely would suffer because of the fragmentation. Crucially, if Mueller vanishes, then it is unclear who -- if anybody -- would be in a position to furnish to Congress a report on the findings of the investigation as a whole. Without such a report, there would be no formal or concrete basis on which Congress or the public could evaluate the investigation, and nothing on which to base a determination on potential impeachment.

Miller's legal challenge to Mueller is about much more than one subpoena. It is about Mueller's fundamental legitimacy as special counsel. If Mueller prevails in this legal battle, then his legitimacy will be confirmed once again. But if Miller pulls out an unlikely win, then everything will change for Mueller -- suddenly and dramatically.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 484675

Reported Deaths: 9480
CountyCasesDeaths
Harrison33151493
Hinds31184589
DeSoto30803365
Jackson23735349
Rankin21390373
Lee14963221
Madison14206272
Jones13430227
Forrest13199241
Lauderdale11623307
Lowndes10501176
Lamar10258130
Pearl River9151221
Lafayette8268137
Hancock7534113
Washington7144152
Oktibbeha6989124
Monroe6533167
Neshoba6489201
Warren6486166
Pontotoc632993
Panola6278127
Marshall6165126
Bolivar6129145
Union576089
Pike5626138
Alcorn540590
Lincoln5310132
George473572
Scott461596
Leflore4495140
Tippah448180
Prentiss447979
Itawamba4457100
Adams4429117
Tate4420103
Wayne434667
Simpson4339114
Copiah432988
Yazoo423686
Covington417192
Sunflower4155104
Marion4111104
Coahoma3986100
Leake398286
Newton372375
Grenada3565104
Stone351360
Tishomingo338389
Attala325987
Jasper316062
Winston305691
Clay297374
Chickasaw287866
Clarke283290
Calhoun267741
Holmes262887
Smith252249
Yalobusha224347
Tallahatchie221150
Walthall211758
Greene209945
Lawrence207034
Perry201054
Amite199452
Webster196942
Noxubee179339
Montgomery172954
Jefferson Davis168342
Carroll162537
Tunica154235
Benton143035
Kemper138840
Choctaw128826
Claiborne127134
Humphreys127038
Franklin116928
Quitman104227
Wilkinson102036
Jefferson91533
Sharkey63020
Issaquena1937
Unassigned00

Alabama Coronavirus Cases

Cases: 790648

Reported Deaths: 14025
CountyCasesDeaths
Jefferson1117431765
Mobile709021237
Madison50032633
Shelby36350315
Baldwin36278495
Tuscaloosa34034548
Montgomery33229678
Lee22712220
Calhoun21297410
Morgan19852335
Etowah19341462
Marshall17716274
Houston16862386
St. Clair15479305
Cullman14659258
Limestone14609188
Elmore14507264
Lauderdale13557281
Talladega13015236
DeKalb12214237
Walker10604330
Blount9735157
Autauga9691137
Jackson9400158
Coffee8934175
Dale8631173
Colbert8545184
Tallapoosa6688181
Escambia6599121
Covington6466167
Chilton6395144
Russell608755
Franklin5805101
Chambers5425134
Marion4818120
Dallas4713189
Clarke464079
Pike463297
Geneva4433117
Winston427395
Lawrence4124108
Bibb410281
Barbour347470
Marengo326485
Monroe320253
Butler318490
Randolph306656
Pickens306474
Henry302658
Hale293085
Cherokee290855
Fayette280373
Washington245548
Crenshaw238770
Cleburne236751
Clay229265
Macon220658
Lamar200443
Conecuh182046
Coosa170835
Lowndes170858
Wilcox159736
Bullock149543
Perry136537
Sumter124736
Greene121443
Choctaw73427
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Columbus
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Little bits and pieces of low pressure move back into our area over the next several days. This will bring back into our weather forecast some more chances for some isolated to scattered showers and thunderstorms.
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