Andrew Miller, a former aide to Roger Stone, has filed a motion to stay the mandate in the U.S. Court of Appeals for the District of Columbia that rejected his constitutional challenge to Special Counsel Robert Mueller in order to seek review of the court’s decision upholding his contempt of court for refusing to appear before the Mueller Grand Jury last June, 2018 in the U.S. Supreme Court.
In the motion, Miller’s attorney Paul Kamenar argued that a stay was justified because the petition to the Supreme Court will present “substantial questions” of Mueller’s constitutionality and that “good cause” exists justifying the short stay of the case from being remanded to the district court.
Kamenar represents Miller on a partial pro bono basis, and is supported by the National Legal and Policy Center.
The motion also cites Brett Kavanaugh to support Miller’s argument that Mueller should have been appointed as a principal officer, not as an inferior officer: “A special counsel [should] be appointed in the manner constitutionally mandated for high-level executive branch officials: appointment by the President and confirmation by the Senate.” Kavanaugh made other similar arguments at a symposium at Georgetown University Law Center in 1998 after he finished his assignment as an assistant counsel to independent counsel Ken Starr.
“The government has not shown any urgent need to have Mr. Miller testify before the grand jury that has already indicted Roger Stone,” Kamenar said. “In fact, during the almost two months since the court’s adverse decision on February 26, 2019, the government failed to request the court to issue its mandate to send the case back to the district court. Accordingly, a short stay of the case would not prejudice the government and should be granted.”
On April 29, 2019, the court of appeals denied Mr. Miller’s petition for rehearing before the full court of appeals. If the court denies the stay of the mandate, further proceedings will take place in the district court. “If the court grants the stay, the National Legal Policy Center will support Mr. Miller’s appeal to the Supreme Court to have Mr. Mueller’s constitutionality reviewed,” said NLPC Chairman Peter Flaherty. Here is the Motion: