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Matt Whitaker appointment has no effect on legal challenge to Mueller authority: Justice Department

November 20, 2018

The appointment of Matthew Whitaker as acting attorney general will have “no effect” on an ongoing court challenge to special counsel Robert Mueller’s authority, the Justice Department said in a Monday court filing.

The filing was made in a case involving Andrew Miller, a longtime associate of GOP political operative Roger Stone. Mr. Miller is seeking to quash a subpoena to testify before a grand jury in the special counsel’s Russia probe.

A panel of three federal judges asked both Mr. Mueller’s prosecutors and Mr. Miller’s legal team to file briefs addressing how the new acting attorney general impacts the case.

Mr. Mueller’s team says it doesn’t impact the ongoing court drama.

“Whitaker’s designation neither alters the Special Counsel’s authority to represent the United States nor raises any jurisdictional issue,” prosecutors wrote. “Nothing exceptional about this case warrants a departure from standard procedure.”

Mr. Miller is fighting the subpoena by mounting a legal challenge to the special prosecutor’s authority. His legal team claims that the special counsel cannot issue subpoenas because he was not appointed by the president nor confirmed by the U.S. Senate.

But the Justice Department said the appointment of Mr. Whitaker, who replaced Attorney General Jeff Sessions two weeks ago, does not affect their work. As part of his new position, Mr. Whitaker took over the Mueller probe from Deputy Attorney General Rod Rosenstein.

“The validity of the Special Counsel’s appointment at that time cannot be retroactively affected by a change in the official who is serving as the Acting Attorney General in November 2018,” Mueller’s prosecutors wrote. “The Special Counsel continues to hold his office despite the change in the identity of the Acting Attorney General.”

Mr. Miller’s legal team also filed a brief Monday agreeing that Mr. Whitaker’s elevation does not impact the case.

It is believed the special counsel is interested in Mr. Miller because of his connection to Mr. Stone. The Mueller team has been interested in Mr. Stone’s alleged ties to WikiLeaks founder Julian Assange, who leaked emails from Hillary Clinton’s campaign and the Democratic National Committee.

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