Robert Mueller was named to his post under DOJ regulations issued in 1999, the same year a post-Watergate-era statute supporting the use of independent counsels was allowed to sunset. The DOJ rules allow for a special counsel to be hired as a department employee in cases presenting a conflict of interest or “other extraordinary circumstances.” | Evan Vucci/AP Photo Former Roger Stone aide makes bid to oust Mueller after subpoena

A former aide to GOP operative Roger Stone filed a motion Thursday in federal court seeking to quash a subpoena from special counsel Robert Mueller, with the ultimate aim of getting the lead Russia investigator booted from his job.

Lawyers for Andrew Miller, who served during the 2016 presidential campaign as an assistant to Stone, petitioned the U.S. District Court in Washington, D.C., to allow Miller to skip an appearance slated for Friday before the Mueller-impaneled grand jury.


Anticipating their request will be denied, Miller’s attorneys said their client planned to refuse to answer any grand jury questions on Friday and will open himself up to civil contempt charges. From there, they plan to seek an appeal to the federal appeals court in Washington, D.C., and ultimately the Supreme Court.

“We’ve been looking for a vehicle” to challenge the constitutionality of Mueller’s appointment, said Peter Flaherty, the chairman of the National Legal and Policy Center, a conservative nonprofit that is paying for Miller's challenge.

After filing the motion, Mueller’s office postponed Miller’s grand jury appearance and proposed to his lawyers possible dates in early or mid-July for two hearings before District Court Chief Judge Beryl Howell. One hearing will be on whether the motion is timely. The other will be on its merits. “If that doesn’t pan out, then we’ve got to testify,” said Paul Kamenar, an attorney for Miller.

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Miller, whose Twitter biography describes him as a “political pirate,” “provocateur” and “shit-starter,” is one of at least five former Stone aides who have come under Mueller’s microscope. Stone, a self-described dirty trickster with a long history working for Trump, is under scrutiny over his contacts with Russians who U.S. intelligence agencies say hacked into Democratic email accounts and then publicly released the materials in a bid to take down Hillary Clinton.

The motion from Miller’s lawyers to quash the special counsel’s subpoena is under a court seal. But his attorneys explained their central argument: They believe that Mueller’s appointment runs counter to the Appointments Clause of the Constitution and that only Senate-confirmed officials can serve in such posts.

Deputy Attorney General Rod Rosenstein named Mueller to his post under regulations issued by the Justice Department in 1999, the same year a post-Watergate-era statute supporting the use of independent counsels was allowed to sunset. The DOJ rules allow for a special counsel to be hired as a department employee in cases presenting a conflict of interest or “other extraordinary circumstances.”

The former Stone operative isn’t the first to target Mueller on legal grounds. President Donald Trump wrote on Twitter earlier this month that Mueller’s appointment was “totally UNCONSTITUTIONAL!” He did not elaborate.

The appointment of the Special Counsel is totally UNCONSTITUTIONAL! Despite that, we play the game because I, unlike the Democrats, have done nothing wrong! — Donald J. Trump (@realDonaldTrump) June 4, 2018

A Russian company charged by Mueller with meddling in the 2016 election filed its own legal motion Monday trying to dismiss its criminal case because the special counsel is out of step with the Appointments Clause. But that motion, involving the St. Petersburg-based Concord Management and Consulting firm, is unlikely to go up for appeal until after any conviction in the criminal charges.

U.S. District Court Judge T.S. Ellis III on Tuesday rejected a different set of arguments surrounding Mueller’s appointment made by Paul Manafort, the former Trump campaign chairman who faces a bevy of charges including bank and tax fraud and failing to register as a foreign lobbyist for his work related to the Ukrainian government.

In a footnote in his opinion, Ellis said that while Manafort hadn’t challenged Mueller on the Appointments Clause issue, the argument “would likely fail” because the special counsel “appears quite plainly to be an inferior officer” who must report to Rosenstein.

Alicia Dearn, a defense attorney representing Miller, said in a Facebook post Thursday that her client was “incidental to the investigation with no pertinent information, and who is not accused of any wrongdoing.”

“And yet he has had his life turned upside down with abusive and unchecked prosecutorial powers, with the prosecutor threatening us absent anything short of docile acquiescence to their intrusive subpoenas and unreasonable searches,” wrote Dearn, a St. Louis-based lawyer who ran unsuccessfully in 2016 for the Libertarian Party’s vice presidential nomination.

Stone and his attorneys declined comment on the Miller motion. A spokesman for Mueller also declined comment.

Several former federal prosecutors dismissed Miller’s move as a stunt.

“A snowball in a well-known hot place below has vastly greater odds of survival than the motion to quash filed by Roger Stone’s former aide,” said Gene Rossi, a former federal prosecutor from Virginia.

Nick Akerman, a former assistant Watergate prosecutor, called the Miller motion a “total loser.” He noted earlier attempts to toss Mueller’s appointment have also been dismissed by federal courts.

“This former aide, if he is found to be in contempt, as is likely the case, will wind up spending time in prison while he wastes time appealing this frivolous issue to the D.C. Circuit and the Supreme Court,” Akerman added.