There’s law and there’s politics. When it comes to Robert Mueller, the special counsel appointed to conduct the so-called Russia investigation, the Justice Department did politics. That is why the public discussion of Mueller’s status — including probably farfetched suggestions that President Trump is on the cusp of firing him — has so botched the law.
At this point, unfortunately, the law must accommodate politics. The alarm bells that led to Mueller’s erroneous appointment cannot be un-rung. But legal surgery needs to be done, lest Mueller’s amorphous mandate lead to Scooter Libby 2.0, or worse, another Iran-Contra epic — a fiasco that seemed to have a longer run than Phantom of the Opera.
Before we get down to business, let’s clear away the underbrush.
Mueller’s Potential Conflicts of Interest
Similarly, too much is made of Mueller’s being pals with Jim Comey, the former FBI director who succeeded Mueller’s twelve-year run in that lofty post. Mueller is a pillar of Washington’s legal and political communities, which heavily overlap. If cordial relations with people in Washington circles is disqualifying, then good luck finding a high-quality special counsel if you ever need one (which we didn’t in this case, but that ship has sailed).
Comey is not a suspect in Mueller’s probe. It is unlikely he is even a witness, since there is nothing of criminal substance to have witnessed (more on that coming). Regardless of one’s view of Comey, moreover, his testimony so far is that there appears to be no evidence of Trump’s collusion in Russia’s campaign-meddling, and that the president was never even a suspect. Agitation over Comey’s personal and professional attachment to Mueller is thus misspent energy. In the unlikely event that a prosecutorial decision to which Comey is somehow central must be made in this investigation, we can trust Mueller at that point to apply the relevant ethical rules and decide, on the basis of a concrete factual scenario rather than speculation, whether his recusal is required to avoid the appearance of impropriety.
The President’s Authority over the Special Counsel
Now let’s turn to Deputy Attorney General (DAG) Rod Rosenstein, who was handed some lemons and has not exactly turned them into lemonade — although there’s still time. We’ll get to the major gaffe — the special-counsel appointment itself — momentarily. But first we turn to his congressional testimony yesterday.
When the subject of reports about Mueller’s potential dismissal was raised, Rosenstein suggested that only he — not the president — has the power to fire Mueller, and only on a showing of good cause. He said he was aware of no such reason, and committed that as long as he remained DAG, Mueller would not be relieved in the absence of good cause. Adding the melodramatic touch that is a staple of law-enforcement testimony these days, Rosenstein added, “I’m not going to follow any order” — an obvious reference to a potential order from Trump to terminate Mueller — “unless I believe they are lawful and appropriate orders.”
Given that the Justice Department is an institution on which we are supposed to depend for fidelity to the Constitution, it is dismaying to have to keep pointing out to its top officials that law-enforcement — the Justice Department and the FBI, in particular — is not a separate, independent branch of government. Its officials are subordinate-delegates of the president. They do not have their own power; they exercise the president’s power at the president’s pleasure.
Rosenstein is obviously reading the federal regulation that governs the ‘conduct and accountability’ of a special counsel.
The president gets to tell the DAG what to do. Now, there are many things it would be very unwise for a president to tell a DAG (and the Justice Department, and the FBI) to do. Too much intrusion would be politically damaging and would undermine the public’s confidence that law-enforcement is guided by the rule of law, not political considerations. Nevertheless, as a matter of constitutional law, everyone in the executive branch, including the DAG and the special counsel, (a) is obliged to follow presidential orders or resign, and (b) may be terminated by the president at will, regardless of cause.
Nor can a federal regulation amend the Constitution, especially in a way that usurps the president’s power. Rosenstein is obviously reading the federal regulation that governs the “conduct and accountability” of a special counsel (28 CFR Sec. 600.7(d)). It says that a special counsel may be removed only by the attorney general (which means the DAG in a case from which the AG has recused himself), and only “for misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause.” This regulation would no doubt govern any decision by DAG Rosenstein to remove Mueller. But it is not a restriction on the president, who has the constitutional power to remove a special counsel for any reason or no reason.
Trump should not fire Mueller. Were he to decide to fire him, he should man up, do it himself, and not put Rosenstein in between a rock and a hard place. But if he were to direct Rosenstein to do it, the DAG would be forced to choose between the Constitution and the regulation. If he resigned rather than carry out the president’s order because he thought it inappropriate, that would be honorable. If Rosenstein resigned because he thought the order unlawful, he would be wrong.
Revising the Special Counsel’s Jurisdiction
Now, finally, to mending but not ending Mueller’s investigation.
It is remarkable that Rosenstein now reads the reg on removing a special counsel with such exactitude when he has read the reg on appointing a special counsel with such inattention. Under the latter regulation (28 CFR Sec. 600.1), a special counsel may only be appointed when the AG or DAG “determines that criminal investigation of a person or matter is warranted.” For the umpty-umpth time, the investigation of Russia’s interference in the 2016 presidential campaign is not a criminal investigation. It is a counterintelligence investigation.
This is the flipside of the issue we took up yesterday: the fact that Attorney General Jeff Sessions’s recusal was unnecessary — or at least premature. He relied on a disqualification regulation that — like the symmetrical reg for appointing a special counsel when the AG is conflicted — makes a criminal investigation or prosecution the determining factor. The attorney general and the special counsel are prosecutors. The thing that makes their participation, respectively, unethical or necessary is the prosecution or the criminal investigation that leads to the prosecution. Those functions are lawyer work, and a lawyer’s fitness vel non is judged by the nature of the lawyer work he or she is called on to do.
Attorney General Jeff Sessions’s recusal was unnecessary — or at least premature.
In marked contrast, a counterintelligence investigation is not lawyer work. It is the agent work of collecting and analyzing information about the threats foreign powers may pose to U.S. interests. Generally speaking, it is the work of the FBI, not prosecutors. Any lawyer work is incidental and ancillary.
Basically, in a counterintelligence probe, a government lawyer is needed for two things. First, if FBI agents need a warrant from the Foreign Intelligence Surveillance Court in order to conduct electronic surveillance of a suspected foreign agent (or to carry out a few other collection efforts that Congress has placed under FISA Court jurisdiction), the lawyers of the Justice Department’s National Security Division craft the warrant and present it to the court. But even then, once the warrant is obtained, it is the agents who run the show — gathering the intel and analyzing it in reports. It is not the objective of a FISA warrant to build a criminal prosecution.
Second, if, in the course of carrying out a counterintelligence probe, the FBI’s national-security agents happen to uncover evidence of criminal-law violations, they are not required to ignore them. These violations may be referred to the Justice Department for prosecution. That’s what you really need prosecutors for. Making such cases is not the objective of a counterintelligence investigation. If the objective is a criminal case, the government is supposed to use the criminal investigative techniques our law provides to law-enforcement officers. But if intelligence agents incidentally discover crimes, prosecution may be pursued.
If Rosenstein had been following the regulation, he would never have appointed Mueller. The regulation calls for the DAG to identify a criminal investigation of a person or matter that the special counsel is appointed to conduct. To the contrary, Rosenstein’s appointment of Mueller cited the investigation that was described by then-FBI director Comey in his March 20 congressional testimony. As Comey made crystal clear, that investigation — the Russia investigation — is a counterintelligence investigation. It is not a criminal investigation of a person or matter.
You don’t need a special counsel to conduct an intelligence-gathering effort. You need a special counsel only if it has emerged that crimes were committed — crimes that it would be unethical or inappropriate for the Justice Department to prosecute in the usual fashion because of some conflict of interest.
To be clear, Rosenstein should not shoulder all, or even most, of the blame for this error. His hand was forced by the uproar over the slipshod manner in which President Trump fired Director Comey. Let’s say Trump had simply and honestly said he personally had decided to fire Comey over the director’s misleading public account of the Russia investigation — i.e., making statements that led the media and the public to believe Trump was personally under investigation while privately assuring Trump and Congress that he was not. Of course, in our turbulent times, there would have been some controversy. But it would have subsided once it became clear that Trump had a point — as I have explained. Instead, the president and his administration gave disingenuous explanations, initially trying to pretend the controversial decision had been made by the Justice Department and Rosenstein, based on a rationale that differed from Trump’s actual reason.
Trump mainly has himself to blame for his straits. The situation, however, can be corrected.
That is what turned a controversy into a scandal — driving media-Democrat demands for a special counsel to a frenzy. Had Sessions not unnecessarily recused himself, the decision about whether to appoint a special counsel would have been his call to make. But the baton had been passed to Rosenstein, who was already under attack for the key role he — no doubt inadvertently — played in Comey’s sacking. Under this intense pressure, the DAG caved — Trump is going to find there’s a lot of that going around when your people aren’t sure you have their back. But it was politics that forced Rosenstein’s hand, not the legal standards for special-counsel appointments.
Trump is plainly angered by the appointment of a special counsel: It was unnecessary, it intimates that he may be guilty of crimes, and it is potentially destructive of his administration’s capacity to govern. The potential for destructiveness is a function of the boundless jurisdiction Rosenstein gave Mueller, which itself is a result of improperly appointing a special counsel to run a counterintelligence investigation. Such an information-gathering exercise, has no real parameters — as opposed to a criminal investigation, which should be narrowly focused on concrete factual transactions that feature the elements of a criminal offense.
Trump mainly has himself to blame for his straits. The situation, however, can be corrected.
Rosenstein should issue a directive superseding his original appointment of Mueller in order to more tightly and appropriately define Mueller’s jurisdiction. The new directive should describe, in writing, the potential crimes that have been uncovered in the Russia investigation.
There is no need to name names of suspects — the Justice Department should always resist that, even if the names would be obvious to people who’ve been following the public reporting. But it should be made clear that the special-counsel appointment is not a fishing expedition on the pretext of a sprawling counterintelligence probe. If criminal conduct has been discovered, it should be spelled out. “Trump campaign collusion with Russia,” aside from being unsupported by any public evidence, is not a crime. If there is to be a special counsel, the public, the Congress, the president, the Justice Department, and the special counsel himself must all know what crimes are being investigated.
This would not bar Mueller from good-faith pursuit of investigative leads that are within this narrower mandate. In the superseding order, the DAG should provide that Mueller may seek an expansion of his jurisdiction if he finds evidence of other potential crimes — i.e., real violations of federal law that are grist for prosecution, not intriguing relationships that can be spun into conspiracy theories. Rosenstein should make clear, though, that a) Mueller must explain (in writing, to Rosenstein) what additional crimes he wishes to investigate, and b) such an investigation may not go forward unless and until Rosenstein issues a new written directive, exactingly describing Mueller’s expanded jurisdiction — and explaining why the Justice Department is so conflicted that Mueller, rather than DOJ, should conduct the investigation.
Mueller should never have been appointed, but the political blowback of relieving him at this juncture would be extremely damaging to Trump’s presidency. Mueller’s special-counsel investigation should proceed, but his jurisdiction should be sharply and narrowly redefined. The investigation should focus on the only thing you need a prosecutor for: crime.
Mueller a Solid Choice for Trump-Russia Investigation
Trump Brought the Special-Counsel Investigation on Himself
Here’s How Congress Can Fix the Way We Investigate Presidents
Under the Obama Precedent, No Trump Obstruction of Justice
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.