To what should be the surprise of no one, Deputy Attorney General Rod Rosenstein has tried to defend his conferral of boundless jurisdiction to special counsel Robert Mueller’s investigation of President Donald Trump. But the conferral is indefensible because Rosenstein failed to adhere to regulations that require a clear statement of the basis for a criminal investigation. This failure is not cured by the DAG’s stubborn insistence that there really are limits to Mueller’s jurisdiction . . . just not limits he can talk about.
Interviewed by Chris Wallace on Fox News Sunday, the DAG claimed that there is a definite “scope of the investigation” because he and Mueller have agreed on one. Yet, he wouldn’t say what that scope is — only that if Mueller wants to probe “something that’s outside that scope,” he needs Rosenstein’s “permission to expand his investigation.”
I see. This, er, explanation put me in mind of a defense lawyer I once encountered while prosecuting a terrorism case. The defendant, he explained, could not be a terrorist because the lawyer’s firm did not represent terrorists. Pretty compelling, no?
Unfortunately, Wallace did not engage the DAG on the fundamental flaw in his appointment of Mueller. Rosenstein maintains that DOJ officials (presumably including himself) are subject to “the rules and regulations of the Department of Justice.” Yet, those rules and regulations expressly mandate that there be a basis for a criminal investigation or prosecution before a special counsel is appointed. The appropriate scope of the investigation is not supposed to be something to which the DAG and the special counsel agree in off-the-record conversations. It is governed by what is supposed to be the specified predicate for a criminal investigation without which there should be no special-counsel appointment in the first place.
The regulation does not permit the Justice Department to appoint a special counsel in order to determine whether there is a basis for a criminal investigation. To the contrary, the basis for a criminal investigation must pre-exist the appointment. It is the criminal investigation that triggers the special counsel, not the other way around. Rosenstein, instead, appointed a special counsel and unleashed him to sniff around and see if he could come up with a crime.
It is specious to claim, as Rosenstein does, that his citation of the Russia counterintelligence investigation is a sufficiently definite statement of the scope of the investigation. As we have frequently pointed out, a counterintelligence investigation is not a criminal investigation. There need be no suspicion of crime before a counterintelligence probe is commenced. The purpose of the latter is to collect information about a foreign power, not to investigate a suspected crime. As shown above, however, the need to probe a specific suspected crime is, by regulation, the prerequisite for appointing a special counsel.
The criminal suspicions that gave rise to Watergate were not kept under wraps.
Moreover, if citing the Russia counterintelligence investigation were a sufficiently definite statement of Mueller’s “scope,” Rosenstein and Mueller would not have had to agree on what the scope of the investigation is — as Rosenstein told Wallace they have done, privately.
Which brings us (yet again) to the regulation governing a special counsel’s jurisdiction, 28 CFR 600.4. It states that the Justice Department will provide the special counsel “with a specific factual statement of the matter to be investigated.” We know from the above-quoted reg (Sec. 600.1) that controls special-counsel appointments that this “matter to be investigated” must involve a suspected crime.
Patently, the order by which Rosenstein appointed Mueller to conduct the Russia counterintelligence investigation is not a specific factual statement of a transaction giving rise to a suspected crime. Nor is Rosenstein relieved of the obligation to comply with the regulation because Justice Department officials prefer not to talk about investigations publicly.
It bears remembering that we have arrived at this point largely because, on March 20, 2017, former FBI director James Comey publicly disclosed the existence of the investigation into Russia’s election-meddling. For good measure, Comey added that the investigation would include scrutiny of Trump-campaign ties to, and coordination with, the Putin regime, as well as an assessment of whether crimes were committed.
Comey testified that he had been authorized by the Justice Department to make this public announcement. How is it, then, that the Trump Justice Department, against law-enforcement protocols, authorized that public discussion of the investigation but now refuses to make disclosures regarding the investigation that are required by regulation?
The president is our government’s most significant public official. An investigation is corrosive of his capacity to carry out his responsibilities. It thus compromises the public interest. We tolerate these debilitating challenges only if (a) there is a good-faith basis to suspect the president may be guilty of criminal misconduct, (b) he is made aware of what the basis for suspicion is so he can defend himself, and (c) the public is informed so we can assess the jeopardy for ourselves.
If a president is reasonably suspected of a serious crime, he should by all means bear the burden of paralysis, and we should hold him accountable — whether that involves voting him out of, or otherwise seeking his removal from, office. If he is not actually a criminal suspect, though, or if he is suspected of something that is objectively trivial, he should not be under a cloud that gratuitously damages his capacity to govern and our security.
The criminal suspicions that gave rise to Watergate were not kept under wraps. Nor were those that led to Iran-Contra, or the scandals involving Whitewater/Lewinsky and Valerie Plame. In each instance, the president and the public understood the basis for criminal investigation and prosecution; the government’s capacity to function was affected to a degree commensurate with the gravity of the allegations; and the ability of special prosecutors to investigate was not compromised. Clarity about the investigation, which is what the governing regulations call for, was in the public interest.
To suggest that invoking the Russia counterintelligence investigation gives Mueller a finite scope from which he is unlikely to stray is to betray naïveté – or at least an unfamiliarity with counterintelligence. The Russia counterintelligence probe is an information-gathering inquiry into the Putin regime’s election-meddling, premised on the intelligence community’s conclusion that Putin wanted Trump to win the presidency. Therefore, to take just one example, any suspected misconduct of Trump’s that could theoretically be known to Putin and usable for blackmail purposes would be relevant. Such suspected misconduct might have utterly nothing to do with the 2016 election, yet it could be highly pertinent to a counterintelligence probe of Putin’s 2016 election-meddling.
Understand: I am not saying there has been any such misconduct. I have no way of knowing. I am merely pointing out that there is no merit in the claim that, by invoking Russia’s 2016 election-meddling and suspicions of Trump-campaign collusion in it, Rosenstein has effectively limited Mueller’s scope to Trump dealings with Russia in connection with the 2016 campaign.
The regulations governing Mueller’s appointment as special counsel call for Rosenstein to specify the basis for a criminal investigation, and thus limit Mueller to that specification. Rosenstein has not done that. Despite the DAG’s claims to the contrary, Mueller is thus free to conduct a fishing expedition. Rosenstein has the authority to correct this error by superseding his statement of Mueller’s jurisdiction in a manner that complies with the regulations. For whatever reason, he has chosen not to do that.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.