Trump’s latest filing in the MAL case to dismiss might derail Jack and save SCOTUS.

quote:

---

Worth a try but I have a feeling they will claim no standing

---

quote:

---

they will claim no standing

---

quote:

---

So the Smirh appointment wasn’t even a normal, by the book, appointment?

---

quote:

---

The first challenge—the one now on appeal to the D.C. Circuit—was brought by Andrew Miller, a potential witness in a Mueller investigation, who refused to comply with a pair of grand jury subpoenas requiring him to provide testimony and documents to the grand jury. Miller argued, among other things, that the subpoenas should be quashed because Mueller was not lawfully appointed. In a very comprehensive opinion on July 31, Chief Judge Beryl Howell denied Miller’s motion to quash.

The other case involves a corporation that a grand jury indicted back in February: Concord Management and Consulting LLC. Concord moved to dismiss the indictment on the ground that Special Counsel Mueller was appointed unlawfully. On August 13, Judge Dabney Friedrich denied that motion. Concord cannot appeal that ruling until after trial.

Likewise, the court’s denial of Miller’s motion to quash the subpoenas in his case is not appealable. Miller, however, continued to refuse to comply with the subpoenas even after Chief Judge Howell denied his motion, and so the Judge held him in contempt. Miller has appealed from that contempt order—and that’s the case the court of appeals will consider on November 8.[4] (Concord has filed an amicus brief in the Miller case.)

Miller’s argument, like Concord’s, is that Rosenstein’s appointment of Mueller violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, which reads as follows:

quote:

---

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

---

---

quote:

---

First, and most fundamentally, he argues that Special Counsel Mueller is a “principal” officer and therefore could only be appointed by the President, by and with the advice and consent of the Senate, which was not done here.

Second, Miller argues that even if Special Counsel Mueller is an “inferior” officer, his appointment was nevertheless unconstitutional because Congress has not “by law” vested the Attorney General with the authority to appoint such a Special Counsel.

Third, Miller argues that even if Special Counsel Mueller is an “inferior” officer, and even if Congress authorized the Attorney General to appoint him, the Deputy Attorney General, Rod Rosenstein, may not make the appointment because he is not the “Head” of the Department of Justice, even where, as here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation and is therefore unable to exercise those functions.

---