“The Special Counsel continues to exercise the same authority, and the jurisdiction of the district court and this Court is intact,” said Michael Dreeben, who represents Robert Mueller. | Chip Somodevilla/Getty Images Legal Mueller says powers still intact amid DOJ overhaul Matthew Whitaker's appointment as the special counsel's boss 'neither alters the special counsel’s authority to represent the United States nor raises any jurisdictional issue.'

Robert Mueller’s top attorney said Monday that the special counsel’s investigative powers remain fully intact despite the recent change atop the Justice Department that gives Mueller's team a new supervisor.

Michael Dreeben, the deputy solicitor general who represents Mueller, told the U.S. Court of Appeals for the District of Columbia Circuit that acting Attorney General Matthew Whitaker taking charge of the Russia probe ”neither alters the special counsel’s authority to represent the United States nor raises any jurisdictional issue.”


Whitaker took over as acting head of DOJ earlier this month when President Donald Trump forced Jeff Sessions' resignation.

“The Special Counsel continues to exercise the same authority, and the jurisdiction of the district court and this Court is intact,” Dreeben added in his 17-page legal brief .

Dreeben’s explanation of the new DOJ arrangement came in response to an order from the federal appellate court requesting last-minute briefs in a case brought by a former aide to Roger Stone designed to knock Mueller from his job on legal and constitutional grounds.

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A three-judge panel heard oral arguments earlier this month in the case, which pits former Stone aide Andrew Miller against Mueller. But the panel largely ignored the elephant in the room during the hearing — Whitaker’s appointment as Mueller's boss, which had happened the day earlier.

Previously, Deputy Attorney General Rod Rosenstein had overseen the probe since Sessions recused himself due to his involvement in Trump's campaign.

Miller’s overall case stems from his decision to resist two sets of Mueller grand jury subpoenas to create a legal vehicle to challenge the special counsel’s authority to investigate potential coordination between the Trump campaign and Russia during the 2016 presidential race.

After the court hearing, the judges ordered an extra round of legal briefs asking both sides to account for Whitaker's new role as Mueller's supervisor, where he has authority over the special counsel's major decisions, including subpoenas, indictments and the public release of a final report

But both sides replied that Whitaker didn’t matter for their case.

In a 10-page brief , Miller attorney Paul Kamenar shrugged off the Whitaker appointment and fell back on his original legal argument: Mueller was an unlawful prosecutor because Trump didn’t appoint him and he had not undergone Senate confirmation.

Attempting to head off an argument that Miller’s lawyers ultimately didn’t make, Dreeben in his brief referenced a memo released last week by the Justice Department's Office of Legal Counsel that explained how Trump had the authority to make Whitaker's appointment.

Dreeben also argued the appellate court wouldn’t have been the right venue to challenge the Whitaker decision anyway. And if Miller’s lawyers had successfully argued that the Whitaker appointment mattered to their case, Dreeben said it would have set off a chain reaction putting Rosenstein back in the role of acting attorney general.

Miller’s attorneys have signaled they want to see their case taken all the way to the Supreme Court, where a conservative majority that includes new Justice Brett Kavanaugh would be a more receptive audience.

But that fight is likely to take months with no guarantee it will even get a hearing before the Supreme Court.

To date, challenges against Mueller’s authority have gone nowhere. The federal judges presiding over separate criminal cases against Paul Manafort issued rulings rejecting the former Trump campaign chairman’s bid to toss out the charges by claiming Mueller’s appointment was flawed.

And a federal judge appointed by Trump rejected an attempt by a Russian company challenging Mueller’s jurisdiction after the firm was charged in connection with a Kremlin-linked online troll farm accused of targeting the 2016 U.S. election.