Mueller Says He Still Exercises the Full Authority of a US Attorney

Mueller’s team has submitted the supplemental brief Judge Henderson ordered the day after Matt Whitaker was appointed, explaining whether his appointment affects Andrew Miller’s challenge to a subpoena he got back in June.

As to the issue at hand (whether his subpoena of Miller is legal), Mueller says Whitaker’s appointment changes nothing, because everything being challenged pertains to his May 17, 2017 appointment, not anything that happened since.

The President’s designation of Acting Attorney General Matthew G. Whitaker on November 7, 2108, has no effect on this case.


All of those arguments turn on the May 17, 2017 appointment of the Special Counsel and the legal and regulatory frameworks that existed at the time of appointment. None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal.

But the brief is interesting because it is the first opportunity Mueller has had to lay out how he understands what happened and how Whitaker’s appointment affects his authority.

As to what happened, Mueller makes no contest that Jeff Sessions resigned.

On November 7, 2018, Attorney General Jefferson B. Sessions resigned from office

Democrats in the House are contesting that, but Mueller is not.

Nor does Mueller question the validity of the OLC conclusion that Whitaker’s appointment is legal.

The Office of Legal Counsel has determined that the designation of the Acting Attorney General is valid as a statutory and constitutional matter. See Office of Legal Counsel, Designating an Acting Attorney General (Nov. 14, 2018), I

None of that is surprising. He works for DOJ and it’s not his place to challenge what DOJ says about DOJ.

What’s more interesting (though not at all controversial) is that Mueller maintains he still has the full authority of a US Attorney.

Similarly, by regulation, the Special Counsel has and continues to “exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6; see United States v. Nixon, 418 U.S. 683, 695 (1974) (“So long as [a] regulation is extant it has the force of law.”).

He relies on US v. Nixon to lay out what it will take to withdraw that authority: changing the regulations he operates under.

Perhaps most important, though, is that Mueller argues that Whitaker’s appointment cannot change the validity of the subpoena (and, one would assume by extension, anything else) that occurred before Whitaker’s appointment.

Because the subpoenas here issued under the signature of the Special Counsel’s Office long before the change in the identity of the Acting Attorney General, that change cannot affect the validity of the subpoenas. And the designation of a different Acting Attorney General while the case is on appeal cannot vitiate the district court’s order holding Miller in contempt.

This would seem to suggest that if Mueller has anything banked — sealed indictments or complaints — then he holds that nothing changes their validity or the DC District’s authority to preside over them.

He also maintains that he retains the authority to appear before the Court.

Second, the change in identity of the Acting Attorney General has no effect on the Special Counsel’s authority to appear in this case. The Special Counsel continues to hold his office despite the change in the identity of the Acting Attorney General.

This would be what he would need to unseal any existing indictments.

None of that is that controversial. But it does make it clear that he views his authority to continue unchecked even with Trump’s hatchet man in place.

30 replies
    • pseudonymous in nc says:

      I don’t see any legitimate exercise of executive power to sneak a peek at the dockets — that’d be another count of impeachment — but if Whitaker wants to snitch on all the work product that went into indictments, I suspect he can.

      (I mean, Black Friday? Really? That would be a bit gauche.)

  1. Katherine Ricker says:

    Thanks so much, EW.  This show’s not over (gulp), but this particular issue has really been bothering me.

  2. TimH says:

    “Mueller makes no contest that Jeff Sessions resigned.”

    Well, JS did resign. The contention is actually whether JS was told to resign by DT or his CoS, and therefore JS was effectively dismissed notwithstanding the resignation letter.

  3. Thomas Paine says:

    Makes me wonder if Mueller drafted and filed a subpoena with The DC Circuit for Trump in between the time Whitaker was appointed on Wednesday and the Friday afternoon that Sessions resignation letter was finally dated.  That may have been an important period of time.  Conversely, if the mysterious court activities and rapid appellate actions starting in August 2018 were around a Trump subpoena, then this filing states that Whitaker’s appt. has no impact, because the subpoena was already filed with the court.

    • 'Stargirl says:

      Mo…The MSM average “lay” viewer is typically a low information person who can’t grasp what EW lays out.

      • Trip says:

        I don’t know for certain, but this person’s questions, at least those I’ve seen, appear to be more about challenging Marcy’s authority on the subject or the legitimacy of the investigation altogether. *Although I say this with the disclaimer that I have been wrong about tone or intent before.*

  4. George says:

    The fact that he knows “none” is singular is totally hot!
    None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal

  5. pseudonymous in nc says:

    The foundation of this brief is “we say nothing has changed, and if Miller wants to argue that something has changed, he needs to take it up with the district court.”

    (I love that Dreeben files his briefs to the DC Court of Appeals in Palatino, though he doesn’t get to do it with the proper ligatures.)

    • AndTheSlithyToves says:

      Nope. It’s Garamond. (page 16 of brief… because it has been prepared in 14-point Garamond, a proportionally spaced font, and does not exceed ten pages.)

      • pseudonymous in nc says:

        Argh, my bad, I meant to say Garamond. (It’s late. I was distracted by MNF.) Yes, Garamond. He adds that disclaimer to say that yes, it’s Garamond, but it’s allowed. But the fi- and fl- ligatures aren’t allowed (look at “office” on the first page) and I’m sure he hates that.

  6. Willis Warren says:

    Going out on a limb here, but is it possible there’s a sealed indictment for the pResident if he doesn’t turn in his take home exam? it seems the lack of indictments is most likely related to the lack of cooperation on the questions

  7. oldoilfieldhand says:

    Reading the emptywheel commenters’ take on the exceptional evaluation of details expressed in Marcy’s posts is almost as interesting as the dissection of minutiae, that only she zeros in on like a heat seeking missile, ones often overlooked by mainstream remora pundits and reporters who latch onto headlines that frequently are, by design, misleading, if not downright inaccurate.
    Thank you Marcy! Thank you commenters!

    • TimH says:

      More like that the investigation can only be stopped by stopping the procedure that started it. 2nd parties can’t interfere, such as fire a team member. Whitaker would be a 2nd party.

  8. Carmen says:

    This is very helpful – thanks. Is there a possibility that Mueller is done and there are sealed indictments waiting to be unsealed under a Democratic House? Would those indictments be safe from tampering if mueller was fired?

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