Law & the Courts

Trump Has Himself, Not Sessions, to Blame for the Limitless Mueller Investigation

Robert Mueller leaves a briefing on his investigation on Capitol Hill in June. (Reuters photo: Joshua Roberts)
His misstatements and accusations made it difficult to limit the special counsel’s scope.

President Donald Trump’s rant against Attorney General Jeff Sessions, in an interview with the New York Times, is a foolish bit of revisionist history. Sessions erred in the rashness and overbreadth of his recusal from the Russia investigation, but the president has himself to blame for the appointment of a special counsel.

Trump is the one who hired Deputy Attorney General Rod Rosenstein. It is Rosenstein whose order appointing Robert Mueller fails to set limits on Mueller’s investigative jurisdiction, thereby authorizing the fishing expedition that has Trump so ballistic. Moreover, it was Trump’s own botching of the firing of FBI director James Comey that spooked Rosenstein, inducing him to appease furious Democrats by giving Mueller free rein.

Trump has a point, though not as much of one as he seems to think, in saying that Sessions should not have recused himself. I’ve argued that the recusal was unnecessary, or at least premature. The disqualification regulation on which Sessions relied calls for an attorney general to step aside if “a criminal investigation or prosecution” causes him a conflict of interest. At the time of his recusal, the Russia probe was a counterintelligence investigation. (For all we know, it still is.) For the umpty-umpth time, a counterintelligence investigation is not a criminal investigation, and no criminal prosecutions have resulted from it. Thus, there was nothing for Sessions to recuse himself from.

Yet, this does not necessarily mean there would never have been a basis for Sessions to recuse himself. Consider a likely scenario: Let’s say that Trump is now under investigation for obstruction of justice on the theories that (a) he interfered with a criminal investigation of Michael Flynn and (b) his dismissal of Comey was intended to impede the discovery of misconduct arising out of Trump-campaign collusion with Russia. In such a situation, Sessions would obviously have had to recuse himself and appoint a special counsel. Mind you, I do not believe there is a prosecutable obstruction case (and have explained why — see, e.g., here, here and here). But I’m just an analyst, other analysts disagree, and part of doing an investigation is hashing out disputed legal questions.

Now, it was a mistake for Sessions not only to jump the gun on recusal but to disqualify himself in a sweeping manner, as if he were somehow too tainted to deal with any matter touching on Russian cyberespionage. As I’ve recounted, Sessions’s overly broad recusal meant that there were no Trump appointees in the Justice Department to push back against then-director Comey’s desire to make sensational public disclosures about the Russia probe in his March 20 House testimony. Comey thus announced that (a) there was an ongoing investigation of Russia, (b) it included an examination of possible Trump-campaign collusion in Russia’s interference with the election, and (c) the FBI would consider whether criminal charges were warranted.

I continue to believe this testimony led directly to Comey’s firing, and Comey’s firing, in turn, led directly to the special counsel’s appointment.

Comey stated in his testimony that he had been authorized by the Justice Department to make his announcement. While Justice was nominally under Trump’s control at the time, the only appointee he had managed to get confirmed was Sessions. Sessions was taking the position that his recusal meant he could not participate in decisions regarding Russia. That was an overbroad interpretation of the disqualification. And even if Sessions were right to avoid weighing in on all Russia-investigation matters, the question whether to allow Comey to make his bombshell announcement did not call for a decision about the conduct of the Russia investigation. The question was whether the FBI should make public comments about ongoing investigations. That was a question for Sessions to decide, not to punt.

Counterintelligence investigations are generally classified. And in any event, the Justice Department and FBI are not supposed to make public comments about ongoing investigations in which formal, public charges have not been filed. Thus, far from an impropriety, it would have been absolutely appropriate for Sessions to direct Comey to refrain from public comment on investigations, including the Russia investigation. Such a directive would not have amounted to participation in the Russia investigation; Sessions would have been upholding law-enforcement protocols.

Far from an impropriety, it would have been absolutely appropriate for Sessions to direct Comey to refrain from public comment on investigations, including the Russia investigation.

Any sensible person would have realized that the press would report Comey’s comments as an FBI confirmation that the president was under investigation. Yet Comey was simultaneously telling the president and Congress, in private, that the president was not under investigation. I continue to believe that if the director had either said nothing (which would have been the right thing to do) or simply said publicly the same thing he was saying behind the scenes (which would have avoided creating a scandalous misimpression), he would still be FBI director. There would not have been a furor over his removal, the fomenting of “obstruction” unrest, or a frenzied demand for the appointment of a special counsel.

Now, about that special counsel . . . let’s remember what happened here.

President Trump decided to fire Director Comey, but instead of manning up about it, he tried to shift responsibility to the Justice Department. He had Rosenstein write a memo recommending that Comey be dismissed because of the director’s public commentary about the Hillary Clinton e-mails investigation. Sessions added a brief concurring memo. Trump then wrote a cover letter saying that he was accepting the Justice Department’s recommendation. That is, the White House’s story was that the decision was Rosenstein’s and Trump was just going along for the ride. Indeed, when questions naturally arose regarding the peculiar timing of Comey’s dismissal, Trump officials pointed out that Rosenstein had just started on the job (he was confirmed less than two weeks before Comey was terminated).

It remains astonishing that Trump and much of his brain trust had convinced themselves that Comey’s firing would win bipartisan approval because Democrats blamed him for Mrs. Clinton’s defeat. Anyone who had been around the block a time or two knew that the party of “resistance” fell back in love with Comey once he put the FBI’s imprimatur on the Trump–Russia collusion narrative.

As night follows day, Democrats went apoplectic over Comey’s ouster, aiming a goodly amount of their wrath at Rosenstein. Having spent many years carefully cultivating the image of a bipartisan lawman, Rosenstein (who, unlike Sessions, had overwhelming Democratic support in his 94–6 confirmation vote) clearly resented the villain’s role Trump had thrust him into.

Meantime, Trump quickly realized how weak he looked for making Rosenstein the fall guy. In a schizo-second, Macho Trump returned. The president promptly contradicted his original story about merely following the Justice Department’s recommendation, now claiming that the decision was his and his alone, and that the Justice Department’s memos had nothing to do with it.

Then, in a lapse of judgment that stands out even by Trump standards, the president decided to host Russian diplomats at the White House the day after firing Comey, and to berate the former director for the consumption of these agents of a hostile regime. In addition to describing the former director as “crazy, a real nut job,” Trump told Putin’s men that by getting rid of Comey, he had “taken off” the “great pressure” he faced “because of Russia.” Thus did the president, with both hands, feed the Democrats’ narrative that Comey had been removed in order to obstruct the FBI’s probe of Trump-campaign collusion in Putin’s election-meddling.

Trump’s breathtakingly erratic performance gave Democrats and the media goo-gobs of ammunition to portray Rosenstein as a co-conspirator in a corruptly motivated, dishonestly executed sacking of the FBI director. There was no way Rosenstein was going to sit passively in the eye of that storm. And there was no way he was going to look to Trump, the man who put him there, for help and guidance. Rosenstein took it on himself to appoint Robert Mueller as special counsel.

From Rosenstein’s perspective, it was a masterstroke. Not only does Mueller have the unimpeachable credentials of a Washington fixture admired on both sides of the aisle; he was also known to be friendly with Comey. They had been joined at the hip in a heated controversy over President George W. Bush’s warrantless-surveillance program when Comey was deputy attorney general and Mueller was FBI director. Then, years later, Comey had succeeded Mueller at the bureau. Trump partisans are overstating the intimacy of their friendship, but there is no doubt that the two men like and admire each other — they’ve been very public about that. Thus, anyone concerned that Comey’s termination had been part of a corrupt scheme to obstruct an investigation would be confident that Mueller would be undeterred in getting to the bottom of it.

Deputy Attorney General Rosenstein was not done, however, with the work of rehabilitating his sterling Washington reputation.

In appointing Mueller, Rosenstein expressly relied on Comey’s March 20 testimony when describing the investigation the special counsel would be taking over. This did not comport with the controlling regulations. In conflict-of-interest situations, they authorize the appointment of a special counsel only when there are grounds for a “criminal investigation.” The probe Comey described in his March 20 testimony is not a criminal investigation; the then-director explicitly stated that the investigation was being conducted by “the FBI, as part of our counterintelligence mission.” To repeat yet again, a counterintelligence investigation is not a criminal investigation. Unlike a criminal investigation, a counterintelligence investigation is not designed to result in a prosecution of criminal charges; it is an intelligence-gathering exercise conducted to understand and address the intentions and actions of foreign powers.

Thus the problem with the assignment Rosenstein has given Mueller: As we have repeatedly observed, a counterintelligence investigation has no discernible jurisdictional limits. Its purpose is to collect information, and from an investigator’s point of view, you can never have enough information. The reason the regulations controlling special-counsel appointments call for a criminal investigation is that crimes have knowable parameters; therefore, when the Justice Department specifies the crimes a special counsel is authorized to investigate, there are obvious jurisdictional limits.

Let’s say a special counsel is appointed to investigate a bank-fraud scheme. In conducting the probe, he stumbles upon evidence that, two years earlier, the subject may have been complicit in an unrelated money-laundering conspiracy. The special counsel would not have authority to investigate the money-laundering crime; he would need to go back to the Justice Department and seek an expansion of his jurisdiction in order to make the newly discovered crime part of his probe.

Rosenstein did not structure Mueller’s investigation that way. This was not an oversight; it was done quite intentionally. Right after appointing Mueller, Rosenstein high-tailed it to Capitol Hill for a meeting with the Senate. As the Washington Post reported, Rosenstein

emphasize[d] to the senators the independent authority that the new special counsel . . . has in the Russian investigation. “If one thing is clear from the meeting we just had, it is that Mr. Mueller has broad and wide-ranging authority to follow the facts wherever they go,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “That gives me confidence and should give the American people some confidence.”

The Post further related that Rosenstein stressed “Mueller’s wide scope” as his rationale for referring senators to Mueller rather than answering their questions about the investigation.

I believe that Rosenstein, having been bitterly criticized by people whose opinions he cares deeply about, decided to make amends by giving Mueller free rein to take the investigation in any direction he chose.

I believe that Rosenstein, having been bitterly criticized by people whose opinions he cares deeply about, decided to make amends by giving Mueller free rein to take the investigation in any direction he chose to take it. Rosenstein wanted Mueller to be effectively independent of Justice Department control.

Sure, the regs instruct the Justice Department to set limits on a special counsel’s jurisdiction. Rosenstein, however, figured that if he followed the regs, Democrats would again inveigh against him for supposedly shielding Trump from an investigation. Under the regs, the special counsel is to be overseen by Justice Department superiors, reflecting the Constitution’s vesting of all executive power (including prosecutorial power) in the president — that’s why there is no such thing as an “independent” prosecutor. But Rosenstein determined that Mueller would be independent — as if he were a separate branch of government, outside executive control.

President Trump accomplished only one thing by railing at Attorney General Sessions: He added to the growing disinclination of quality people to work in his administration. No one with self-respect wants to work in a place where the boss not only won’t back you up when the going gets tough, but will turn on you with a vengeance — especially when there’s a need to divert attention from his own shortcomings.

Whether we’re talking about the shoddy behavior that intensified calls for a special counsel or about the selection of the officials who made the key decisions that have armed the special counsel with limitless jurisdiction, the president has only himself to blame.


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