We all knew what Watergate was. We knew what Iran-Contra was. And the Lewinsky scandal. And the purported outing of Valerie Plame. Up until now, each time a special prosecutor has been sicced on a presidential administration, we’ve known what the allegations were. Our views about whether the conduct involved warranted such debilitating scrutiny may have diverged sharply. But at least we knew what the investigations were about, what the presidents and/or their subordinates were accused of doing.
That’s because what they were accused of doing was criminal. You need a prosecutor only to investigate crime.
Mind you, the “Russia investigation” — the investigation with no specified crime — has already factored heavily in the dismissals of a top White House staffer and the head of our country’s premier investigative agency. Now it seems the nation’s top federal law-enforcement officer is on the brink. There is background noise about indictments, pardons, and impeachment. But we still don’t know what the allegation is. Or if there is one.
At the risk of trying our readers’ patience, I am going to beat a dead horse I’ve been wailing on since the first days of the Trump-Russia controversy. I do it because someday we may look back and realize the debacle was driven by the confusing label of “counterintelligence investigation,” which has obscured, well, everything.
In the counterintelligence context, because the government is not trying to build a criminal case, the constitutional protections that apply in criminal investigations are significantly diminished. Thus, if the government pretextually exploits its counterintelligence authorities to conduct criminal investigations, serious legal problems arise. The 9/11 controversy over “the wall” — the infamous regulations that prevented information-sharing between counterintelligence and criminal agents — occurred precisely because the Justice Department was overeager to demonstrate its determination to keep the two realms separate.
Counterintelligence work would be more accurately described as “information gathering and analysis” than as an “investigation.” Investigations are about collecting evidence in order to prosecute crimes.
Counterintelligence is not about rooting out crime; it is about divining the intentions of foreign powers.
This is expressly reflected in federal regulations — specifically, the ones that control when a “special counsel” should be appointed and when an attorney general should recuse himself. These things come into play only when criminal activity has occurred. They are not applicable to counterintelligence probes, which usually don’t involve prosecutors at all.
There is a need for an attorney general to disqualify himself, or for a special counsel to be appointed, only when the AG or the Justice Department at large is beset by a conflict of interest. How do we know whether there is such a conflict? We look at the known crime, or the factual basis for suspecting a crime. We then ask whether some political or personal connection to the criminal transaction under examination disqualifies the AG or the Justice Department from participation. To answer the question, “Is there a conflict?” we look at the criminality that must be investigated or prosecuted.
Don’t take my word for it. Let’s look at the pertinent regulations, excerpted below (with my italics). Here is the one (28 CFR 600.1) that governs special-counsel appointments by the Justice Department:
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and — (a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
Could it be clearer? A special counsel is not to be appointed unless and until it is determined that there are grounds for a criminal investigation. Only if that is established does the Justice Department move on to the question whether there is a conflict of interest. The answer to that question, in turn, hinges on the Justice Department’s relationship to the criminal investigation or prosecution. If there is no criminal investigation or prosecution, there is no reason to discuss appointing a special counsel.
Let’s assume there is an appointment. How do we know what the special counsel is authorized to investigate? We go to the regulation that controls the special counsel’s jurisdiction (28 CFR 600.4). In pertinent part, it says:
The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated.
What is the “matter to be investigated”? We know from the earlier quoted regulation, governing when a special counsel may be appointed, that the matter to be investigated must be criminal. If it is not, there is not supposed to be a special counsel in the first place. Consequently, the “specific factual statement” must describe the criminal transactions that have triggered the need for a special counsel.
What about the recusal of an attorney general — what triggers that? Recusal is governed by a regulation that Attorney General Sessions cited when he recused himself from the “Russia investigation.” The regulation (28 CFR 45.2) is entitled, “Disqualification arising from personal or political relationship.” The relevant part states (again, my italics):
No employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with: (1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or (2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.
Again, unless there is first a criminal investigation or prosecution, the regulations do not require recusal. Readers may recall that this is why I contended that Sessions’s recusal was unnecessary — at least the breadth of it at the time it happened.
Since Sessions’s recusal is the grist for the president’s latest Twitter clown show, let’s think about how this should have worked.
The “Russia investigation” was described by the FBI’s then-director, James Comey, in March 20 congressional testimony. He reiterated what had been clear since January, when three U.S. intelligence agencies (FBI, CIA, and NSA) issued their report on Russia’s interference in the 2016 election: The probe is a counterintelligence investigation, not a criminal investigation. To quote Comey:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
Explicitly and unambiguously, Director Comey described a counterintelligence investigation, not a criminal investigation. Do not be thrown by Comey’s last sentence, promising an “assessment of whether any crimes were committed.” This just refers to the unremarkable fact that, when agents conduct a counterintelligence probe, they are not required to ignore any criminal evidence they may stumble upon.
An example helps make this point. Let’s say the FBI is conducting a counterintelligence investigation of Chinese espionage. The agents have grounds to believe X may be a covert agent for China. So, under the FBI’s counterintelligence authorities, the agents get a warrant from the Foreign Intelligence Surveillance Court, permitting them to eavesdrop on X’s phone calls. In the resulting wiretap, in addition to hearing of X’s contacts with Chinese officials, the FBI learns that X is dealing heroin. Obviously, the FBI does not say, “We must ignore this criminal evidence because we were not conducting a criminal investigation.” The law allows them to determine that the information they’ve gathered indicates criminal activity and to refer that evidence to the law-enforcement side of the Justice Department for prosecution. They can use the drug-trafficking evidence to open up a criminal investigation of X and his heroin ring; but from there, they would use criminal authorities (grand jury, search warrants, criminal wiretaps, etc.), not counterintelligence authorities. Significantly, the discovery of criminal evidence does not convert the counterintelligence investigation itself into a criminal investigation.
So, applying these principles and regulations, what should have happened in the Russia investigation?
When pressed to recuse himself, Attorney General Sessions should have said that the FBI’s Russia investigation was a counterintelligence probe, and therefore he was not disqualified under the regulation. Nevertheless, there was a pending criminal investigation arising out of the Russia investigation: the inquiry into whether former National Security Adviser Michael Flynn had made false statements to FBI agents regarding his communications with Russian Ambassador Sergey Kislyak. Sessions could thus have announced that he was recusing himself from the criminal investigation of Flynn.
Sessions could have added that, in the event the Russia counterintelligence probe uncovered other criminal evidence, he would be prepared to recuse himself from any resulting criminal investigation as to which he had a conflict of interest. Thus, if Director Comey had later claimed that President Trump pressured him to drop the Flynn investigation, Sessions could have recused himself from the decision about whether to proceed with a criminal investigation of the president for obstruction. Mind you, this would not have been a finding that the president had committed felony obstruction; it would have been an acknowledgment that, under the regulations, that issue has to be resolved by an un-conflicted prosecutor.
This is what should have happened. Instead, the regulations were flouted.
Notice what the effect of this would have been. If Sessions had recused himself in this properly limited manner, the question of whether the Justice Department should appoint a special counsel would still have arisen. But the jurisdiction of any special counsel would have been appropriately limited, by regulation, to the criminal investigations that triggered the attorney general’s recusal: the false-statements investigation of Flynn and the obstruction investigation of Trump.
In the scenario I’ve posited, in which the Justice Department follows the regulations, the special counsel would not be blocked from investigating other crimes. The regulation that controls the special counsel’s jurisdiction expressly allows him to seek an expansion of his jurisdiction if, in the course of legitimately conducting his investigation, he uncovers indications of previously unknown criminal activity. The special counsel simply asks the attorney general (or, if the AG is recused, the deputy AG) to expand his warrant to include the new crimes; the AG, after ensuring that the special counsel discovered the new crimes while faithfully adhering to the limits of his jurisdiction, then extends the warrant to include the additional criminal activity.
This is what should have happened. Instead, the regulations were flouted: Sessions recused himself from the Russia counterintelligence investigation, and then Deputy Attorney General Rod Rosenstein handed that counterintelligence investigation over to special counsel Robert Mueller.
Consider how improper this is. Not only is Mueller invited to conduct a fishing expedition, with no specified crimes limiting his investigative jurisdiction, but counterintelligence probes are classified. Consequently, Mueller’s investigation proceeds in total secrecy: no boundaries on what may be examined, and no disclosures about what the special counsel is examining and why.
Instead of badgering his attorney general on Twitter, perhaps the president could, you know, act like a president and instruct his Justice Department to comply with federal regulations.
Sessions could be directed to consider whether his recusal complies with the regulation that limits disqualification to criminal investigations as to which there is a conflict. To the extent it does not, he should amend the recusal to conform to the regulation.
Rosenstein could be directed to consider whether his appointment of a special counsel complies with the regulations that limit such appointments to criminal investigations or prosecutions as to which the Justice Department is conflicted. He could further be directed to specify exactly what potential crimes the special counsel is authorized to investigate.
Finally, after Rosenstein specifies the crimes, Mueller could be invited to seek an expansion of his jurisdiction if he can demonstrate that he has legitimately found evidence of other crimes.
If this were done, if the regulations were followed, all of us, including the president, would know what crimes the president is suspected of committing . . . if there are any.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.