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The other potential threat to Mueller's investigation

Updated 6:33 PM ET, Fri November 9, 2018

Editor's Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and Rutgers University scholar. Follow him on Twitter @eliehonig. The views expressed in this commentary are his own. View more opinion articles on CNN.

(CNN) - 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 were in court 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.


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