For those tracking Mueller's case against Concord Management & Consulting: Concord is trying to intervene in Andrew Miller's appeal to the D.C. Circuit challenging the constitutionality of Mueller's appointment and the legality of Rosenstein's appointment order.
Miller, BTW, is a longtime aide to Trump confidant Roger Stone, and was held in contempt after refusing to comply with a grand jury subpoena. Miller, too is challenging Mueller's authority vis-a-vis his grand jury subpoenas on the same basis that Concord challenged its indictment
Concord says it has a stake in Miller's appeal since a D.C. Circuit ruling in his favor would likely do more than invalidate the contempt order: it could also weigh in on whether Mueller's appointment violated the appointments clause of the Constitution. This = precedent.
According to a brief filed by Concord today, the appointments clause provides it "a legally protected interest against indictment and prosecution at the hands of an unconstitutionally appointed Officer of the United States." documentcloud.org/documents/4797…
The gov. argued that Concord could pursue its own appeal, which it did Monday. Concord had argued that the indictment should be tossed because Mueller lacks authority to charge the company. So the D.C. Circuit will twice weigh in on Mueller's appointment. courthousenews.com/indicted-russi…
2 judges, the chief U.S. District Judge in DC, and the Trump appointee overseeing Concord's case, affirmed the constitutionality of Mueller's appointment; the latter tossed Concord's motion to dismiss. And the judges in Manafort's criminal cases refused to toss his indictments.
Manafort had argued that the appointment order didn't authorize Mueller to charge him for crimes unrelated to Russian election interference or possible Trump campaign collusion, but Judge Ellis in Virginia and Judge ABJ in DC rejected that argument.
The gov. meanwhile urged the D.C. Circuit to bar Concord's intervention, saying it didn't suffer an injury re: Miller's contempt order and just wants to complain about it. Having a "keen interest" in the matter, the gov. says, doesn't give Concord standing documentcloud.org/documents/4797…
Both Concord and Miller had argued that Mueller - because of his broad power - should be subject to presidential nomination and Senate confirmation, rather than treated as an inferior officer appointed by acting AG Rosenstein (which happened because Sessions recused himself).
To sum up, it will be interesting to track the course of these appeals and see whether any challenge to the constitutionality of Mueller's appointment ends up before the Supreme Court. Those opposed to Kavanaugh's nomination to the high court likely have this in mind.
