The Rosenstein Memo

Eight months ago, in August 2017, Deputy Attorney General Rod Rosenstein secretly gave Special Counsel Robert Mueller specific guidance as to the crimes Mueller is authorized to investigate. The guidance came about ten weeks after Mueller’s May 17 appointment. This guidance purports to describe the grounds for criminal investigations, marking the limits of the special counsel’s jurisdiction.

As readers may recall, these columns have been critical of the deputy attorney general for failing to provide such guidance. Instead, I’ve contended, Rosenstein assigned Mueller to conduct a counterintelligence investigation, which is not a sound basis for appointing a special counsel; the regulations require grounds for a criminal investigation.

So . . . was I wrong? No, I was right.

We learned Tuesday morning, based on a Monday-night court filing by Mueller, that Rosenstein’s amplification of Mueller’s jurisdiction was set forth in a classified memorandum dated August 2, 2017. That memo was filed just one week after a July 26 column in which I comprehensively laid out the deficiencies in Rosenstein’s appointment order and suggested that he could cure the problem by “specify[ing] exactly what potential crimes the special counsel is authorized to investigate.” To be clear, I do not claim to be the only commentator who has criticized the deficiencies of Rosenstein’s appointment order, though I doubt others have done so as consistently and pointedly, including with proposals for bringing it into compliance. (See, e.g., “Mend, Don’t End, Mueller’s Investigation.”)

The Deficiencies of Rosenstein’s Order Appointing Mueller

To recap, Rosenstein appointed Mueller on May 17, 2017, days after President Trump’s botched firing of FBI director James Comey — a debacle in which the administration’s conflicting explanations for the director’s removal, coupled with the president’s reprehensible comments about Comey for the consumption of Russian diplomats he hosted at the White House, intensified Democratic calls for a special counsel.

From the outset, I protested that Rosenstein’s order appointing Mueller violated governing special-counsel regulations. They make the trigger for such an appointment the existence of a “criminal investigation of a person or matter,” which some conflict of interest prevents the Justice Department from conducting in the normal course — requiring that an attorney from outside the U.S. government be assigned to conduct the criminal investigation (see 28 CFR Sections 600.1 and 600.3). To the contrary, Rosenstein’s order disclosed no basis for a criminal investigation and indicated no crimes that had allegedly been committed.

Instead, the deputy attorney general assigned Mueller to conduct a counterintelligence investigation. To wit, Rosenstein defined the probe as “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” In that testimony, Comey had quite explicitly confirmed a counterintelligence probe: “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” (emphasis added).

Significantly, there is a natural symmetry between the grounds for appointing a special counsel and those for requiring the recusal of top Justice Department officials. It is the latter that gives rise to the former. I had thus argued that Attorney General Jeff Sessions’s recusal from the Russia investigation was premature and too sweeping. As the attorney general acknowledged, the recusal matter was controlled by 28 CFR Section 45.2. But that regulation similarly states that disqualification is necessary only if there is a criminal investigation or prosecution as to which a prosecutor has a conflict of interest.

Since the Russia investigation was a counterintelligence investigation, I contended that Sessions could have declined to recuse. There was a caveat: In the event the Russia counterintelligence probe turned up evidence of crimes that would warrant criminal investigations, Sessions — because of his prominent role in the Trump campaign — would likely have to recuse himself from those investigations, on a case-by-case basis (e.g., if criminal charges were brought against Michael Flynn, as ultimately happened).

Sessions’s recusal in early March 2017 has been, ever since, the subject of heated overreaction by President Trump. While the president has a point because the recusal was too broad, he acts as if there were no basis for it at all. In point of fact, if the counterintelligence investigation were to yield grounds for criminal investigations that arose out of the campaign, including any implicating Trump himself, Sessions would have been bound by ethics rules to disqualify himself from those matters.

The question, of course, is whether such grounds exist. Trump’s irritation that Sessions’s recusal could be taken as an implicit concession that there are such grounds is understandable. But Trump’s apparent belief that the attorney general is there to shield the president from investigation is dangerously wrong; and the presidential wrath that bursts from this belief is, to put it mildly, unbecoming — the president’s disturbing penchant to act like a guilty man even if he is probably not one.

The tension between the president and the attorney general bubbled over (as it occasionally has over the past year) on July 19, 2017. That is when the New York Times published its interview with Trump, in which he said that he would not have appointed Sessions as AG had he known that Sessions would have recused himself from overseeing the Russia investigation. There followed days of commentary over this eruption — including my own contribution, a column arguing that Trump had himself, not Sessions, to blame for the existence of a no-boundaries special counsel investigation.

Proposing That Rosenstein Specify Mueller’s Jurisdiction

The Times’ interview of Trump and its aftermath brought renewed (and, to my mind, welcome) attention to Rosenstein’s failure to specify grounds for a criminal investigation that would justify the special-counsel appointment. In my aforementioned July 26 column, after (yet again) rehearsing why Rosenstein’s appointment order failed to comply with governing regulations, I closed with some observations and suggestions:

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. [Emphasis added.]

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.

We now know that on August 2, Rosenstein issued a classified memorandum, undertaking to correct the appointment’s order’s deficiencies by describing various grounds for a criminal investigation. 

Manafort’s Motion to Dismiss Mueller’s Charges

It is worth considering how we have come to know about the memo.

About three weeks ago, Paul Manafort filed a motion to dismiss the money-laundering indictment Mueller filed against him in the District of Columbia (and he has since filed a motion to dismiss the bank- and tax-fraud indictment Mueller filed against him in the Eastern District of Virginia). The motion to dismiss, which was foreshadowed by a civil lawsuit Manafort filed in January, claims that the special counsel’s charges against him, based on Manafort’s dealings with a Kremlin-backed Ukrainian political party, exceed the jurisdiction outlined in Rosenstein’s appointment order, which focuses on Russia’s interference in the 2016 election.

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