Special counsel Robert Mueller’s probe is facing a new challenge to its legitimacy from an unlikely source: Russia.
Echoing an argument offered by President Donald Trump himself, a Russian company Mueller has charged with meddling in the 2016 election filed a legal motion Monday seeking to dismiss the case by attacking Mueller’s appointment as a violation of the U.S. Constitution.
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The filing from American attorneys for St. Petersburg-based Concord Management and Consulting contends that Mueller’s appointment was legally flawed because he was never nominated by the president and confirmed by the Senate — nor was he appointed pursuant to a specific law passed by Congress.
Many legal experts believe that Mueller likely did not expect to face a legal counterattack from the Russian company, which was founded by a close ally of Russian President Vladimir Putin. The unexpectedly vigorous defense could consume Mueller’s precious time and resources, diverting him from his ongoing investigation.
The statute used to appoint independent counsels expired back in 1999. But Deputy Attorney General Rod Rosenstein named Mueller under regulations issued that same year which allow for a special counsel to be hired as a department employee in cases presenting a conflict of interest or "other extraordinary circumstances."
"Under this Nation’s established constitutional framework, without a proper appointment and express congressional authorization, neither the Attorney General nor his subordinates have the inherent authority to empower a private attorney to investigate and prosecute anyone, regardless of citizenship, when he or she deems it is expedient to do so under jurisdictional ground rules that he or she alone sets down," Concord’s attorneys wrote.
"Here, the Deputy Attorney General and the Special Counsel are attempting to exercise authority neither the Constitution nor Congress has conferred, and this Court should dismiss the Indictment to restore the checks and balances the Constitution demands," they added.
In a tweet earlier this month, Trump made a similar point more succinctly: “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!” Trump wrote. “Despite that, we play the game because I, unlike the Democrats, have done nothing wrong!”
Concord Management is among three Russian companies and 13 Russian citizens named in a February indictment Mueller filed in U.S. District Court in Washington for participating in an alleged effort by the Internet Research Agency to deploy trolls and polarizing advertising to encourage strife among Americans in the 2016 election. One of the charged individuals, Yevegniy Prigozhin, is a Russian restaurateur and ally of Russian President Vladimir Putin who is often referred to as “Putin’s chef.” The indictment alleges that Prigozhin helped bankroll the U.S.-focused online campaign.
In a separate court filing Monday, Concord’s attorneys acknowledged that Prigozhin is Concord’s “general manager” and has decision-making authority for the company.
The indictment was initially seen as a “name and shame” effort in which the defendants were all but certain never to submit themselves to the jurisdiction of a U.S. court. However, in April, Concord Management retained the Pittsburgh-based law firm Reed Smith, formally entered an appearance in the case and began demanding information from prosecutors about how the case was assembled.
The case is assigned to U.S. District Court Judge Dabney Friedrich, Trump’s newest appointee to the district court bench in Washington.
At a hearing last month, lawyers for Concord Management entered a not guilty plea on the company’s behalf. Under court rules, no individual beyond an attorney is required to appear on behalf of a corporate criminal defendant.
Litigating the case on the company’s behalf has the potential to push Mueller’s team toward a trial, without exposing any individual to the possibility of jail time.
Prosecutors have insisted they’re prepared to press forward with the case, although they initially sought to delay the company’s arraignment. Mueller’s team has also sought to block the company’s lawyers from sharing any discovery information with foreign nationals like Pirgozhin, unless Friedrich specifically approves it.