“WHAT DOES ALL THIS MEAN?”
by Montgomery Blair Sibley, blogging at Amo Probos, ©2018
(Oct. 25, 2018) — I was very surprised this week to learn that the U.S. Circuit Court of Appeals for the District of Columbia Circuit accepted my request to file an Amicus Curiae brief in the case of Miller v. United States of America. Andrew Miller, who once worked as an aide to Trump ally Roger Stone, has been held in contempt of court for refusing to testify before a grand jury in special counsel Robert Mueller’s Russia investigation. Miller attempted to quash his subpoena, but a judge ruled this month that he would have to testify. Oral arguments in the matter are scheduled for November 8, two days after the midterm elections.
What makes this curious is that it is unusual to allow amicus curiae briefs in a criminal matter. Yet, by an Order entered October 11, 2018, that is exactly what the Circuit Court did and now I have filed my Amicus Curiae brief. Here is what is more curious:
- Jeannie S. Rhee of the Department of Justice — who represented Hillary Clinton during the 2015 lawsuit regarding her private emails and the Clinton Foundation in a racketeering case — agreed to my filing of the brief; and
- The issue I raise — that has not been raised on appeal by either the government or counsel for Andrew Miller — is arguably dispositive: Regardless of whether Mr. Mueller initially had the authority for his investigation into Russian Collusion, by statute found at 5 U.S. Code §3346 Mr. Mueller’s authority ended 210 days after he was appointed by Mr. Rosenstein. That date was December 17, 2017, and every action taken by him thereafter is void. See: 5 U.S.C. §3348(d)(“any function or duty of a vacant office’ performed by a person not properly serving under the statute shall have no force or effect.”)
- Will I be allowed to argue orally? What does all this mean?
You tell me.