Finally, three years coming, the Justice Department is showing a little more leg on the Rosenstein “scope” memo — the directive by which then–deputy attorney general Rod Rosenstein defined the parameters of the investigation he’d appointed Special Counsel Robert Mueller to conduct.
Of course, the games never end in the Trump–Russia probe, so there’s a hitch. The scope memo remains partially, tantalizingly redacted. Disclosure is limited to Rosenstein’s purported grounds for investigating four members of the Trump presidential campaign: Carter Page, Paul Manafort, George Papadopoulos, and Michael Flynn. But six lines of text, which appear to describe a fifth person, and the supposed basis for investigating that person, remain blacked out.
Does this redacted section refer to President Trump? We do not know.
We do know that the FBI had opened a criminal investigation of Trump, based on the untenable theory that a president’s firing of the FBI director could amount to obstruction of justice. The last 200 pages of the special counsel’s voluminous report, moreover, demonstrate that the cabal of activist Democrats that Robert Mueller recruited to conduct the investigation tried like hell to make an obstruction case on Trump. But was that aspect of the special counsel’s enterprise licensed by Rosenstein’s scope memo? For some reason, we’re not being told.
The scope memo is dated August 2, 2017. It is worth rehearsing why it was necessary.
Rosenstein appointed Mueller on May 17, 2017. In doing so, as I explained repeatedly at the time, he failed to comply with federal regulations. The appointment of a special counsel is proper only if there is a factual basis to support a criminal investigation that the Justice Department is too conflicted to conduct. The Russia investigation was not a criminal investigation; it was a counterintelligence investigation. The latter focuses on the activities of foreign powers for information-gathering purposes, not on criminal activity for prosecution purposes.
On Trump–Russia, there was no factual basis for a criminal investigation, which is why Rosenstein did not attempt to articulate one in his directive appointing Mueller. Therefore, the question of whether there was a conflict requiring the appointment of a prosecutor from outside DOJ should never have been reached. Even if it had been reached, there was no conflict, which is why the FBI and DOJ had been conducting the Russia investigation for nearly a year before Mueller’s appointment. In any event, because the FBI’s counterintelligence mission is not prosecutor work, it normally does not need a DOJ prosecutor, much less an outside prosecutor.
That the initial appointment directive was wholly inadequate is not surprising. In that Week That Was, Rosenstein was evidently an emotional wreck.
On May 9, President Trump fired FBI director James Comey, publicly relying on a memo Rosenstein wrote and foolishly assumed he’d reap bipartisan praise over — he had, after all, scalded Comey over the mishandling of the Hillary Clinton emails caper. To his shock and dismay, Rosenstein was vilified. Though Democrats had no real use for Comey (they blamed him for Clinton’s defeat), by May 2017 they found it expedient to frame Comey’s firing as the height of the president’s “collusion” with Russia — impeding the FBI’s effort to examine the fever dream of Trump-campaign complicity with the Kremlin. Indeed, the bureau’s then–acting director, Andrew McCabe, leapt at the Comey firing as a rationale for opening an obstruction case on Trump.
Rosenstein agitated over being made the fall guy. In his hand-wringing over how to restore his reputation as a scrupulous nonpartisan (i.e., a nominally Republican bureaucrat admired by Democrats), he broached the possibilities of invoking the 25th Amendment to remove a mentally unfit president from office and of covertly recording the president in the Oval Office (if Trump ranted, recordings might convince the cabinet that he was unstable). Realizing that these were lunatic notions, Rosenstein finally settled on naming Mueller, a Beltway eminence, to be a special counsel. The appointment was made on May 17, with Rosenstein’s assurances to congressional Democrats that Mueller would have virtually boundless authority.
But the problem remained: There was no factual basis to believe that the Trump campaign, or anyone associated with it, had engaged in a conspiracy with the Kremlin to interfere with the 2016 campaign by cyberespionage or any other criminal activity.
The failure of Rosenstein’s order appointing Mueller to specify a proper foundation for a criminal probe was not just a public-perception problem for the Justice Department: It portended legal challenges. If Mueller charged anyone, as it appeared he was poised to do to Manafort (for tax and other crimes unrelated to Trump and Russia), the defense would surely claim that Mueller’s appointment was illegitimate.
To paper over this deficiency, Rosenstein issued the scope memo. Up until yesterday, we had been permitted to see only the Manafort-related passages (because, as just adumbrated, they became an issue in Mueller’s prosecution of Manafort). But as I noted at the time, even that glimpse of the memo provided insight into the travesty that was the Mueller appointment, and the Trump–Russia probe itself.
The unredacted Manafort section authorized Mueller to investigate whether Manafort “committed a crime by colluding with Russian-government officials with respect to the Russian government’s efforts to interfere with the 2016 election.” Where to begin? First, as we noted more times than I can count, collusion is not a crime. Second, not surprisingly, Rosenstein articulated no factual basis to believe Manafort had “colluded” with Russia. Third, that’s obviously because the “basis” for this allegation was the bogus “Steele dossier.” Fourth, by the time Mueller was appointed, the FBI and the Justice Department well knew that the dossier was Clinton-campaign-sponsored propaganda. FBI agents had not only failed to corroborate its triple-hearsay claims; they also knew that Steele had major credibility problems, and they had interviewed a key Steele “sub-source” who scoffed at his claims as nonsense.
Of course, Rosenstein wouldn’t have wanted to bring those inconvenient details up. At the time of the scope memo, he’d only recently authorized the final application for a FISA surveillance warrant against Carter Page — which relied on the Steele dossier, notwithstanding what the FBI and DOJ already knew about its deep flaws.
Speaking of Page, recall that he was never charged with a crime despite the FBI and DOJ’s four representations, under oath to the FISA court, that he was a clandestine agent of Russia working in a “conspiracy of cooperation” between the Trump campaign and Putin’s regime. Yet the now-unredacted portions of the scope memo show that Rosenstein authorized Mueller to investigate Page for “colluding” with Russia. Naturally, the memo does not elaborate on the “basis” for this allegation. Like the “basis” for the FISA warrants, it relied heavily on the Steele dossier.
The unredacted scope memo similarly reveals George Papadopoulos as a Mueller prosecution target, over the unsupported allegation that he may have committed the nonexistent crime of “colluding with Russian government officials.” Mueller was authorized to pursue this claim even though we now know the FBI and DOJ knew it was untrue. Because the FBI had used confidential informants to attempt to entrap Papadopoulos into admitting that he and Trump’s campaign were in cahoots with the Kremlin, investigators knew he had vigorously denied it. They also knew that their main tip on Papadopoulos (Alexander Downer, an Australian diplomat with longstanding ties to the Clintons) had not actually claimed that Papadopoulos said the campaign was conspiring with the Russians. In fact, Papadopoulos had not even mentioned DNC emails, the publication of which had “suggested” to the diplomat that there might kinda, sorta be some Trump-campaign wrongdoing involved.
And then there is General Flynn. Regarding the Trump–Russia probe, the scope memo shows Rosenstein directed Mueller to investigate whether Flynn committed a crime “by engaging in conversations with Russian government officials during the period of the Trump transition.” Of course, the Justice Department and the FBI already knew there were no such crimes because they had recordings of these communications, between Flynn and Russian ambassador Sergey Kislyak.
Flynn had not made any commitments to Russia about lifting sanctions, and even if he had done so, it would not have been a crime. The only theory on which these communications were conceivably criminal would have called for application of the Logan Act. As we’ve noted many times, this late-18th-century provision, which purports to criminalize freelance diplomacy by unauthorized officials, is unconstitutional. That is why the Justice Department has not even tried to invoke it since 1852, and why, in the Logan Act’s 221 years on the books, no one has ever been convicted of violating it.
Mueller was also authorized to probe whether Flynn had made false statements to FBI agents who questioned him about his Kislyak conversations. By the time of the scope memo, the FBI and DOJ knew that (a) the questioning of Flynn had not been based on any properly predicated investigation; (b) the FBI had willfully violated protocols to conduct an ambush interview, which they would not have been permitted to do had they sought permission from the Justice Department and the White House; (c) the agents who interviewed Flynn did not believe he had lied; and (d) the bureau improperly edited the report of Flynn’s interview. Mueller’s staff nevertheless eventually succeeded in pressuring Flynn to plead guilty to a false-statements charge. It has since been reported, however, that (a) they pressured him to plead by threatening to prosecute his son, (b) Mueller’s commitment not to prosecute Flynn’s son was withheld from the court, in violation of federal law, and (c) prosecutors concealed from Flynn’s defense significant exculpatory evidence while misrepresenting how the interview report was generated.
It is worth noting that Rosenstein authorized Mueller to investigate other crimes — e.g., irregularities regarding payments Manafort received from Ukraine, and whether Papadopoulos and Flynn should have registered with the Justice Department as foreign agents due to work they’d allegedly done for, respectively, Israel and Turkey. Putting aside whether there was a sufficient factual basis for these allegations (over which only Manafort was eventually prosecuted), they had nothing to do with the Trump–Russia probe. That is, there was no conceivable conflict warranting appointment of a special counsel, no reason why the Justice Department could not have investigated these matters in the normal course of business.
Mueller, to the contrary, was appointed only because an investigation of President Trump and his campaign could have presented a conflict for the Trump Justice Department. Whether it did depended, of course, on whether there was a real reason to conduct a criminal probe of President Trump, despite the fact that the FBI’s former director, James Comey, told Trump multiple times that he was not under investigation.
From the looks of things, then–deputy AG Rosenstein not only had nothing when he appointed a special counsel; he further had abundant reason to know he had nothing. “Democrats are saying mean things about me” is not a legally cognizable basis for naming a prosecutor from outside DOJ. Did Rosenstein have more than that? It doesn’t look that way . . . but maybe all the good stuff is under those six lines that, for some reason, we’re still not allowed to see.