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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.

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  1. The first section of 5 U.S. Code §3346 reads:

    ” the person serving as an acting officer as described under section 3345″

    Mueller is not an “acting” anything, he’s a Special Prosecutor.

    section 3345:

    “..an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate..”

    Can you explain how that applies to Mueller? Or is your argument that Muellers authority ended when Rosenstein did? It’s not clear to me what your argument is, please clarify.

    (See D.C. Cir. Rule 34(e).)
    An amicus curiae, other than one appointed by the Court, may not present oral argument without
    permission of the Court, and such permission is sparingly granted. If counsel for the party supported by the
    amicus consents to share oral argument time with the amicus, no motion is necessary, subject to the
    limitation in Circuit Rule 34(c) that no more than two attorneys may argue. Otherwise, an amicus seeking
    leave to argue must file a motion no later than 14 days prior to the date oral argument is scheduled.”