Thread re: an update in Roger Stone aide Andrew Miller's appeal of his contempt order. His attorney filed an appeal brief early this morning making very similar arguments that Russian firm Concord Management & Consulting made when they tried to get Mueller's indictment tossed.
Essentially, Miller and Concord are both challenging the constitutionality of Mueller's appointment. Miller also asked the D.C. Circuit to weigh in on whether a private attorney can serve as special counsel, and if so whether he must be appointed by the AG rather than the DAG.
"Because of his extraordinary powers as a prosecutor, coupled with the lack of supervision and control over this conduct, the Special Counsel, like U.S. Attorneys, was required to be appointed by the President and confirmed by the Senate," Miller's brief says.
All the district court judges who have considered the legality and scope of Mueller's authority have affirmed both. Miller's appeal will be the first challenge to the constitutionality of Mueller's appointment that the DC Circuit considers. If he loses, he plans to go to SCOTUS.
Background: Miller was held in contempt after refusing to present documents and give testimony to the grand jury in Mueller's probe. He moved to quash the subpoena on the basis that it was invalid since he claims Mueller was unconstitutionally appointed.
The chief judge denied the motion, affirmed the legality of Mueller's appointment and then held Miller in contempt. The contempt order is on hold while Miller appeals. Of note: Miller's attorney filed an incomplete brief a few minutes after the midnight deadline.
Then 4.5 hours later, at 4:34 a.m., he submitted an updated and complete brief. He had already twice asked the D.C. Circuit for an extension of time to file. For the true nerds, here's a link to the latter brief: documentcloud.org/documents/4872…
