A single judge expressing criticism of any aspect of Robert Mueller’s appointment or conduct is sure to be seized on by President Donald Trump and his allies as fresh evidence that Mueller’s installation as special counsel was illegitimate. | Chip Somodevilla/Getty Images Legal Forgotten challenge to Mueller lingers at appeals court

A wait of more than three months for the first appeals court ruling on the legality of special counsel Robert Mueller’s appointment is fueling suspicion among court watchers that the decision might contain an unwelcome surprise for Mueller’s team.

Even the lawyer who brought the challenge doubts that the three-judge D.C. Circuit panel hearing the case will upend Mueller’s authority nearly two years into his investigation of alleged collusion between the Trump campaign and Russia. But just a single judge expressing criticism of any aspect of Mueller’s appointment or conduct is sure to be seized on by President Donald Trump and his allies as fresh evidence that Mueller’s installation as special counsel was illegitimate.


When a district court judge publicly questioned Mueller’s mandate and tactics last year, the president leapt at the opportunity to bolster his efforts to discredit the special counsel.

Whether Trump will get another chance to do that in the coming days or weeks because of the as-yet-unreleased D.C. Circuit ruling remains the subject of active debate in legal circles, but a judicial opinion raising doubts about Mueller could be particularly welcome in Trump’s camp as it braces for a potential release containing some of Mueller’s findings.

“On occasion when a case takes longer, it tends to show there are disparate opinions. That could mean there’s a dissent, but it might not be,” said Enrique Armijo, a law professor at Elon University in North Carolina and a former D.C. Circuit law clerk. “The fact that it’s taking a longer time, if I had to lay down money, I’d say there could be multiple opinions.”

The challenge the D.C. Circuit panel is wrestling with was brought by Andrew Miller, a former assistant to the longtime Trump adviser Roger Stone. Arguing that Mueller was illegally appointed, Miller fought a subpoena to appear before a grand jury in Washington. After losing in front of a district court judge, attorney Paul Kamenar took Miller’s case to the appeals court, which heard arguments in November.

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“That it’s been over three months since the case was argued tells me that the assigned judge is writing a long and carefully crafted opinion in this important constitutional case, considering the District Court opinion was 92 pages long,” Kamenar said.

At one point, it looked as if Mueller might be waiting for Miller’s testimony before charging Stone, who had said publicly since last May that he was bracing to be indicted. As the fight with Miller unfolded last year, however, no indictment of Stone emerged.

Stone was finally indicted last month, about 10 weeks after Miller’s appeal was argued.

A few days later, Kamenar turned up at the federal courthouse in Washington, chatting with journalists about the Mueller challenge he brought that has dropped from the headlines.

Stone’s indictment prompted Kamenar to ask prosecutors whether Miller’s testimony was still needed. He said they replied with a one-line email saying the grand jury still wanted to hear from his client.

Federal court rulings and Justice Department policy say grand juries should be used to investigate only potential future charges, not past ones. That prosecutors are still pressing for Miller’s testimony suggests further charges against Stone or one of his associates, Kamenar said.

Measured against a typical D.C. Circuit case, the pace of the Miller appeal is not particularly sluggish. The median wait for a decision in a case argued at the D.C. Circuit is 3.1 months, according to data released last year by the Administrative Office of the U.S. Courts.

However, the court typically treats grand jury cases with greater urgency than other disputes, since the lack of testimony or records from a particular witness can sometimes impair an ongoing investigation. And the court initially seemed intent on moving the Miller case along quickly.

An expedited briefing schedule was set just two days after the appeal was docketed last August. The Nov. 8 argument date also vaulted the case ahead of many others pending at the court.

“That seems to imply that they viewed the issue to have some urgency,” said Armijo, the Elon law professor.

In recent months, Miller’s challenge has been eclipsed by another, more mysterious grand jury fight involving the special counsel: a showdown with a foreign-government-owned company refusing to turn over information demanded by a jury working with Mueller’s prosecutors.

That dispute quickly sprinted past the Miller case, both in terms of timing and public attention after POLITICO first reported on the mystery battle last October.

The grand jury appeal involving Mueller and the foreign firm was argued in secret at the D.C. Circuit on Dec. 14, with an initial ruling from the three-judge panel emerging just four days later. A more detailed 23-page opinion and a five-page concurrence were released last month, less than four weeks after the case was argued.

The still-unidentified firm prolonged the battle by taking the issue to the Supreme Court, where Chief Justice John Roberts briefly issued a stay, which was dissolved when the full court declined to take action. The company’s request to add the case to the high court’s docket is still pending.

Kamenar said he saw a “stark contrast” between the D.C. Circuit’s rapid-fire handling of the firm’s case and the more drawn-out pace in his one. “I expect a decision any day now,” he added.

The legal issues involved in the foreign company’s fight are more narrow than those raised by Miller’s appeal, which challenges both the constitutionality of Mueller’s directing the investigation without Senate confirmation and Deputy Attorney General Rod Rosenstein’s power to name a special counsel.

Former prosecutors said they remained doubtful that Mueller would suffer an outright defeat in the Miller case, but they said the passage of time suggested some trouble for the special counsel.

“I suspect if they were going to cut Mueller off at the knees, as it were, they would’ve done so promptly,” said Barbara McQuade, a former U.S. attorney in Detroit.

The panel considering the challenge to Mueller’s appointment consists of two Democratic-appointed judges and one Republican appointee: Judith Rogers, who was appointed by President Bill Clinton; Sri Srinivasan, an appointee of President Barack Obama; and Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

“I wonder if Judge Henderson is battling the others. Otherwise, I don’t get the delay,” McQuade said.

Clearly, Trump would embrace any judicial suggestion — even a dissent — suggesting that Mueller’s investigation was flawed from the outset.

“The Mueller investigation is totally conflicted, illegal and rigged!” the president wrote on Twitter on Sunday. “Should never have been allowed to begin, except for the Collusion and many crimes committed by the Democrats. Witch Hunt!”

Last May, a judge handling one of Mueller’s cases against Paul Manafort, Trump’s former campaign chairman, publicly challenged Mueller’s tactics, saying the prosecution had nothing to do with Mueller’s mandate to investigate Russian interference in the 2016 presidential race. U.S. District Court Judge T.S. Ellis also questioned whether Mueller was asserting “unfettered power” to pursue any case he wished.

Trump was so thrilled at Ellis’ critique that he read a news account about it aloud at a speech in Texas to thousands of National Rifle Association members. “I’ve been saying that for a long time,” Trump said, praising the judge as “really something special.”

The following month, however, Ellis rejected Manafort’s legal arguments against the special counsel. The judge called aspects of Mueller’s approach “distasteful,” but said that it was common practice by prosecutors and no reason to dismiss the case against Manafort, who was later convicted by a jury on eight felony charges, including tax and bank fraud.

Despite speculation that Henderson might part with her colleagues, Armijo — who clerked for her — said it would be a mistake to predict a dissent from her solely based on her Republican ties.

“She’s not a terribly partisan person at all with respect to her decisions from the bench,” the professor said. “I have no doubt that if she’s writing separately she’s being very careful about what she would say.”

Darren Samuelsohn contributed to this report.