Over the course of 92 pages, Howell resoundingly rejected an attempt by Andrew Miller, a former associate of Trump confidante Roger Stone, to quash a subpoena to testify, explaining why the “scope of the Special Counsel’s power falls well within the boundaries the Constitution permits.”
Miller had argued that Mueller was not nominated by the President and confirmed by the Senate and therefore was unconstitutionally appointed as a “principal officer.” Howell found the claim unpersuasive in light of the Supreme Court’s decision in Morrison v. Olson, which upheld the constitutionality of provisions of a now-defunct federal statute creating an independent counsel, and subsequent court decisions. Instead, Howell found Mueller to be an “inferior officer” under the supervision of deputy attorney general Rod Rosenstein, who took up the oversight of the Russia investigation after Attorney General Jeff Sessions recused himself from it last year.
“His appointment, without presidential appointment and senatorial confirmation, thus did not violate the Appointments Clause,” Howell wrote.
Miller also claimed that Sessions’ “mere recusal” from the Russia investigation didn’t make Rosenstein the acting attorney general for purposes of tapping Mueller to lead the probe. But Howell didn’t buy that argument either, pointing to the fact that various federal statutes allow the attorney general to delegate the authority to appoint a special counsel to the deputy attorney general.
“Multiple statutes authorize the Special Counsel’s appointment, and the official who appointed the Special Counsel had power to do so,” Howell concluded, underscoring a point previously acknowledged by several prominent legal voices.