Andrew Miller was growing pot in California just a few months ago. Next year, he hopes to take down special counsel Robert Mueller in the Supreme Court.
In August, Miller, a former aide to Republican provocateur Roger Stone, refused to answer a subpoena from Mueller, who’s leading the probe into Russian interference in the 2016 election. That decision has put the 34-year-old Miller in contempt of court, but it’s also opened a pathway to attack the constitutionality of Mueller’s entire investigation.
Now, with the backing of a powerful Washington conservative legal group with a track record of targeting Democrats, Miller has positioned himself as the real-life avatar of a favored conservative argument: the special counsel never should’ve been appointed at all. And he’s hoping the high court’s rightward alignment, with the help of Brett Kavanaugh, will override the lower courts that have already dismissed the idea.
“My stress has been pretty much relieved,” Miller said in a rare public comment, shortly after Kavanaugh’s confirmation earlier this month. “I feel nothing but great.”
Oral arguments are scheduled for Nov. 8 in the U.S. Court of Appeals for the D.C. circuit — after which the case might, possibly, reach the Supreme Court.
Miller’s chance of success looks very, very slim, legal analysts told VICE News. But they warned that the Supreme Court, if his case makes it to there, can be unpredictable.
“It’s always possible that an argument that doesn’t necessarily have broad acceptance in lower courts will appeal to the Supreme Court,” said Harry Sandick, a former federal prosecutor.
Even if the Supreme Court decides to get involved, few experts said Miller's case has a chance of surviving the court. But simply getting there could unlock political dividends for Mueller’s opponents, including President Trump.
Especially if there’s anything short of a 9-0 ruling in Mueller’s favor, experts said.
“If conservative justices issue a strong dissent, asserting a very strong notion of the presidency, that would certainly embolden Mueller’s critics,” said Rebecca Roiphe, a former prosecutor who now sits on the faculty of the New York Law School.
A sweeping minority dissent questioning Mueller’s authority could provide political cover for future efforts to restrict the scope of his investigation, dismiss the validity of his findings, dish out presidential pardons, defend against impeachment proceedings — or even to fire Mueller, legal experts said.
Seth Waxman, a former federal prosecutor based in Washington, D.C., echoed Roiphe’s warning: “Even if just two learned, high-placed justices end up arguing that Mueller is illegitimate, that could impact the politics of whatever the Mueller report says.”
In this regard, Miller’s lawyer, Paul Kamenar, is hoping Kavanugh will play a decisive role in the nation's highest court.
“We believe Justice Kavanaugh will be sympathetic with our arguments, based on his prior jurisprudence and writings,” Kamenar told VICE News.
Kamenar argues that Mueller’s appointment by Deputy Attorney General Rod Rosenstein in May 2017 didn’t square with the requirements of the Constitution’s Appointments Clause. And even if it did, he argues, then Mueller should have either been appointed by the president and confirmed by the Senate or else appointed by Attorney General Jeff Sessions.
Miller caught investigators’ attention thanks to his long-standing relationship with Stone, whose role at the fringes of the Trump campaign is widely seen as a keen focus of Mueller’s Russia probe.
Miller had worked as Stone’s “traveling aide and scheduler,” and “serviced” Stone’s web sites, Stone said. Both Stone and Miller say they largely parted ways in 2015, though Miller helped arrange interviews for Stone at the 2016 Republican National Convention.
Stone says he’s had no involvement in the Miller case, and no substantive conversations with Miller since the initial FBI interview. “I have had no communications with Miller or his lawyers regarding their appeal,” he wrote.
Miller, for his part, has tried to distance himself the Trump campaign: he's not a fan of Trump, and actively supported Libertarian candidate Gary Johnson, he told another Stone associate, Michael Caputo, during a podcast interview earlier this month that marks his only interview about his case. In fact, at the time of the 2016 election, Miller was living on a farm growing legal pot in Northern California.
But his connection to Stone surfaced again in May, when he was approached by FBI agents outside his mother’s house, a week after moving back to Missouri to start a house painting business,
“He was asked a series of questions about my family life, personal life, sex life, drinking habits, advocacy for the legalization of marijuana and my relationship,” Stone told VICE News.
Miller answered a first round of questions, and ultimately agreed to hand over a stack of documents. But after a weeks of back-and-forth with Mueller’s team, Miller balked at appearing in front of the grand jury — and launched his quest to take down Mueller.
Miller’s refusal to appear was aimed expressly at creating the legal basis for his challenge to Mueller’s appointment, his lawyer told VICE News.
“Mr. Miller respectfully declined to appear before the grand jury, and asked to be held in contempt in order to appeal the challenge to Mueller,” Kamenar said.
That defiance captured the attention of some powerful allies.
Miller’s cause was taken up by a veteran conservative nonprofit called the National Legal and Policy Center, which itself has been funded, in part, by longtime Republican mega-donors.
The NLPC has previously supported ethics investigations into prominent Congressional Democrats, like California representative Maxine Waters and New York Sen. Robert Menendez. In 1993, the group successfully sued to have Hillary Clinton’s health care task force open up its records and meetings.
“I asked him if he knew anyone who was a Mueller target or witness who would like to bring such a challenge. He steered us to Andrew Miller.”
Supporters of the NLPC include the Ed Uihlein Family Foundation, run by the wealthy shipping magnate and GOP mega-donor Ed Uihlein. Uihlein has given millions to Republican candidates vying in this year’s midterm elections.
Another backer is the Sarah Scaife Foundation, which was reported last year by the Pittsburgh Post-Gazette to have funded organizations with connections to 25 high-ranking members of the Trump White House transition team.
Peter Flaherty, NLPC president, told VICE News he reached out to Miller because he was looking to find “a Mueller target or witness” who might want to challenge the special counsel.
He said he’d been inspired by a Wall Street Journal op-ed last spring by Steven Calabresi, the co-founder of the conservative Federalist Society, which argued Mueller has overstepped his constitutional authority.
“When professor Calabresi wrote his WSJ op-ed in May, I thought that it was a great idea to bring a challenge,” Flaherty wrote in an email to VICE News. “I contacted Mike Caputo, who was all over TV at the time…. I asked him if he knew anyone who was a Mueller target or witness who would like to bring such a challenge. He steered us to Andrew Miller.”
NLPC soon hooked Miller up with Kamenar, who took the case for a reduced, semi-pro bono rate.
NLPC wasn’t the only powerful group supporting Miller’s challenge. In September, a Russian company that’s been targeted by Mueller filed a friend-of-the-court amicus brief supporting Miller’s assertion that the special counsel’s appointment should be deemed unconstitutional.
The company, Concord Management and Consulting LLC, is controlled by the wealthy Russian tycoon Yevgeny Prigozhin, who’s earned the nickname “Putin’s Chef.” Concord was indicted by Mueller in February, and accused of funding an elaborate, multimillion-dollar trolling effort to undermine in the 2016 election. On Friday, the Department of Justice made mention of Prigozhin again, in a fresh indictment against Russian national Elena Khusyaynova, 44, over her alleged role as the “chief accountant” overseeing the financing of the campaign.
“I have no idea if the Supreme Court will hear the appeal, but then I didn't think they'd hear Bush v Gore.”
Instead of simply ignoring the charge, as many legal observers expected, Prigozhin’s company hired a team of top-shelf Washington lawyers from the law firm Reed Smith to test Mueller at every chance, including attempting to throw Concord’s weight behind the house painter from Missouri.
Miller’s lawyer, Kamenar, praised the work of Concord’s legal team.
“I welcome Concord’s participation in the case,” Kamenar said. “The attorneys from Reed Smith, working for Concord, have filed an excellent brief in my case in the court of appeals.”
Both Kamenar and Stone said they don’t expect Miller to win his next round in the appeals court, which is scheduled for Nov. 8, just two days after the midterm elections. But they’re holding out hope that the Supreme Court may take an interest not long after.
“I have no idea if the Supreme Court will hear the appeal, but then I didn't think they'd hear Bush v. Gore,” Stone wrote in an email, referring to the 2000 presidential election decision that split the court down partisan lines.
Cover image: In this June 21, 2017, file photo, special counsel Robert Mueller departs after a meeting on Capitol Hill in Washington. (AP Photo/J. Scott Applewhite, File)