Mueller Says Whitaker Appt Doesn’t Affect Subpoenas — Maybe Not Sealed Indictments, Either?

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Robert Mueller says in a recently filed brief that the appointment of Matthew Whitaker has no effect on the subpoena of Andrew Miller, the former Roger Stone aide, who is challenging the constitutionality of Mueller being appointed by Rod Rosenstein. Mueller also makes it clear that Whitaker’s appointment does not affect the Office of the Special Counsel at all.

Andrew Miller’s immediate issue is whether Mueller’s subpoenaing him in June is valid, and Mueller says yes. Read the supplemental brief to get all the details, but simply, Mueller points out that everything Miller is challenging applies to Mueller’s May 17, 2017 appointment, and

“the legal and regulatory frameworks that existed at the time of appointment. None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal.”

Now, where this gets interesting, is that Mueller lays out how Whitaker’s appointment affects his authority — not at all. Mueller says a change in players doesn’t affect the authority of the Special Counsel and moreover, that the Special Counsel still retains the full authority of a U.S. Attorney.

Similarly, by regulation, the Special Counsel has and continues to “exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6; see United States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as [a] regulation is extant it has the force of law.”).

If the appointment of Whitaker doesn’t affect Miller’s subpoena, it’s reasonable to assume that nothing else that happened before Whitaker’s appointment would be affected either.

…the change in identity of the Acting Attorney General has no effect on the Special Counsel’s authority to appear in this case.

[…]

Because the subpoenas here issued under the signature of the Special Counsel’s Office long before the change in the identity of the Acting Attorney General, that change cannot affect the validity of the subpoenas. And the designation of a different Acting Attorney General while the case is on appeal cannot vitiate the district court’s order holding Miller in contempt.

It’s reasonable to infer that sealed indictments would be treated the same as the subpoenas in question, because they, too, were “issued under the signature of the Special Counsel’s Office long before the change in the identity of the Acting Attorney General.” Now, as to sealed indictments, isn’t it interesting that three dozen of them, an unusually high number, have been added to the D.C. federal court docket since the beginning of the year? ABC News:

…several legal experts told ABC News the number of sealed cases awaiting action right now is unusual. Fourteen were added to the docket since late August alone, a review by ABC News has found, just as the midterm elections were drawing near and longstanding Justice Department policy precluded prosecutors from taking any public action that could appear to be aimed at influencing political outcomes.

And the inadvertent discovery on Thursday night of what appear to be secret charges pending against WikiLeaks founder Julian Assange has drawn fresh attention to the mystery. Legal experts told ABC News that the sealed cases could be tied to Special Counsel Robert Mueller’s ongoing investigation of Russian interference in the 2016 election and possibly part of a quiet effort to protect his investigation from any premature effort to shut it down.

“I assume that Mueller knew that once the election was over, there could be an existential threat to his investigation,” said Matthew Miller, a former senior Justice official under former Attorney General Eric Holder. “He knew the best thing to do was act before that.”

The power of a U.S. Attorney is what Mueller would need to get the indictments unsealed, and he retains that.

Here’s the bottom line, from Mueller’s brief.

The Special Counsel continues to hold his office despite the change in the identity of the Acting Attorney General.

Sean Hannity better break the news gently to Trump that once it’s on the docket, Whitaker can’t do jack. And, again, somebody’s sealed indictments are on the docket in D.C., maybe they’re Trump Russia’s?  Maybe they’re Trump Russia’s.

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