A federal judge appointed by President Donald Trump ruled Monday that special counsel Robert Mueller’s probe is constitutional and legitimate, rejecting an effort by a Russian company — accused of financing a massive political influence operation in the United States — to stamp out the ongoing investigation.
Judge Dabney Friedrich, who Trump appointed to the U.S. District Court of Washington D.C. last year, is the fourth judge to quash efforts to upend Mueller’s legitimacy and cancel his investigation. Judges overseeing the two trials of former Trump campaign chairman Paul Manafort — D.C. judge Amy Berman Jackson and Eastern District of Virginia Judge T.S. Ellis — rejected Manafort’s bid to invalidate Mueller.
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Earlier this month, the D.C. circuit’s Chief Judge Beryl Howell issued a lengthy ruling rejecting similar legal arguments offered by Andrew Miller, a longtime associate of Trump confidant Roger Stone, who was attempting to beat back a subpoena to testify before Mueller’s grand jury. Miller’s lawyer, Paul Kamenar, told POLITICO on Monday morning that Miller still intends to appeal the decision. Last week, Miller was held in contempt of court for again ignoring the grand jury subpoena, a move Kamenar said was necessary in order to pursue his appeal.
Mueller indicted the Russian company, Concord Management, in February along with 13 individual Russians — including Yevgeny Prigozhin, a close associate of Russian President Vladimir Putin. The indictment alleges that Concord, Prigozhin’s firm, funded and organized an army of internet trolls, the purchase of social media ads and even directed operatives to travel to the United States to set up political rallies. Their goal, Mueller alleged, was to sow discord in the 2016 U.S. election and ultimately assist Donald Trump’s candidacy.
Concord pleaded not guilty to the charges and though the indicted Russians aren’t expected to participate in the proceedings, the firm tapped American attorneys to represent it in court, a move seen as an attempt to gain insight into the evidence Mueller has gathered.
Though Friedrich upheld Mueller’s probe, she did offer a significant nod to his critics: that no laws “explicitly authorize” Mueller’s appointment. Rather, she concluded that Watergate-era Supreme Court precedent — as well as Howell’s recent ruling — found that the Justice Department had the authority. They concluded this “without analyzing specifically how any individual provision combination of provisions accomplished this,” Friedrich wrote.
Concord’s lawyers had argued that Mueller’s appointment was flawed at multiple levels — and at its core was unconstitutional. Mueller was appointed last year by Deputy Attorney General Rod Rosenstein. But Mueller’s power is so vast, Concord contended, that he should have been subject to presidential nomination and Senate confirmation, rather than treated as an “inferior” officer who may be appointed and supervised by the attorney general. Though Mueller, in theory, reports to Rosenstein, Concord contended that Justice Department regulations prevent Rosenstein from overturning many of Mueller’s decisions, giving him an authority that should only be permitted for individuals appointed by the president.
Friedrich agreed that the regulations governing Mueller’s probe are ambiguous enough to grant him some sweeping authority, but she found one fatal flaw in the argument: Justice Department leaders may rescind the special counsel regulations at any time. If Attorney General Jeff Sessions or Rosenstein decide to exert more control over Mueller, they can simply rewrite the rules, she noted.
“As a result, the special counsel is effectively removable at will,” Friedrich write.
Though Friedrich, the first Trump-appointed judge to consider the matter, ultimately supported Mueller’s validity, she left a trail of legal breadcrumbs suggesting she had doubts about some of the special counsel team’s arguments. Friedrich found that existing laws “‘do not explicitly authorize’ the [Rosenstein] to appoint the Special Counsel, rejecting arguments by Mueller’s team that several statutes backed up his appointment.