Paul Manafort‘s legal team brought a motion to dismiss on Tuesday, noting that Rosenstein could not appoint Mueller to any investigation outside the scope of the 2016 campaign since Sessions did not recuse himself for anything outside the campaign. I agree with this take on Mueller’s authority. If we follow that argument that would mean Sessions himself has exclusive authority to appoint a special counsel for non-collusion charges, and Sessions has taken no such action. Sessions himself should make that clear to Mueller, rather than await court resolution. Doing so would remove three of the four areas of inquiry from Mueller’s requested interview with President Trump.
Sessions formally notifying Mueller that he does not have authority to act outside of campaign-related cases and cases related to obstruction of Mueller’s investigation would be doing what the Constitution compels: enforcing the Appointments Clause of the Constitution. Additionally, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases would be exercising Sessions’ court-recognized Constitutional obligation to “direct and supervise litigation” conducted by the Department of Justice. Furthermore, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases protects against the inappropriate use of the federal grand jury that defendant Manafort now rightly complains about.
Sessions limiting Mueller to the 2016 campaign would also be restoring confidence in democratic institutions, and restore public faith that democratically elected officials.
One thing to remember about Sessions’ recusal: Sessions only recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This recusal letter limits the scope of Sessions’ recusal to the 2016 campaigns; it does not authorize Sessions’ recusal for anything beyond that. Constitutionally, Sessions has a “duty to direct and supervise litigation” conducted by the Department of Justice. Ethically, professionally, and legally, Sessions cannot ignore his supervisory obligations for cases that are not related to the “campaigns for President.”
Second, the Constitution’s Appointment Clause requires the democratic process control the appointment of all but “inferior” officers. This means there can be no principal executive branch officer except those the President personally appoints and the Senate advises and consents to. There is probably no greater domestic power of the executive branch than the power to access a grand jury to indict someone, the power to access a grand jury to subpoena someone’s testimony and records, the power to access the tax records of any individual in the country, the power to request warrants to spy on someone’s activity or search it and seize it, or the power to simply threaten any of the above to an individual American. That is why that power must be limited to principal, democratically-appointed officers. The special counsel, when not appointed by the President, cannot act legally except as an “inferior” officer, strictly limited to the jurisdictional subject matter limits of his appointment and supervisory power of those above him that have been directly, democratically appointed by democratically elected officials. As a federal district court held: “the special counsel cannot act outside the bounds of either his limited jurisdiction or without regard for Department of Justice policies and regulations. As such, the Special Counsel does not wield unlimited authority.” Indeed, a special counsel’s “authority is therefore confined to the narrow objective of accomplishing the specific mandate he was given.”
Third, Sessions limiting Mueller would enforce the limits intended on Rosenstein’s letter authorization. Contrary to anti-Trump critics, Mueller’s mandate was not “get Trump,” “indict anybody who ever worked for Trump.” Mueller’s authority is limited to “links between the Russian government and individuals associated with the campaign of President Donald Trump.” Any subject matter that does not concern “the campaign,” is a subject matter that Sessions Constitutionally must directly supervise Mueller. This includes Sessions power to notify Mueller and formally revoke Mueller’s authority at any time in cases that do not concern the campaign itself. Sessions can remove Mueller’s authority to request search warrants, subpoena grand jury testimony, subpoena grand jury records, target individuals, or issue indictments unless the subject matter is constricted to the campaign itself. Sessions can return power over the existing indictments to regular DOJ prosecutors, as both the Constitution and the statutes compel. Sessions can dismiss existing indictments as an excess of authority of Mueller’s team (a team already infamous for acting outside their authority in the past, whether it be ethical abuses or over-broad, unconstitutional interpretations of federal criminal law).
Some control needs to be exercised to see that this “investigation” someday comes to an end, regardless of what is found. As it is, it is designed to simply continue as an end and an entity of its own.
Of course, no matter how much Constitutional, legal or structural support a decision to rein Mueller in has, the left will squeal like stuck pigs at the thought of restricting an open-ended rogue “investigation” that represents their last and best hope to remove a duly elected President of the United States on imaginary pretenses.
Seems many involved with the DOJ and Investigative depts like to co-op power that is beyond themselves, Rosenstein knew this but allowed it. Sessions should have reined this in long ago, now the expectations that Mueller has all this investigational power has been set. If Sessions or Rosenstien do not rein in the rougue to the narrow Russian Collusion investigation I hope the courts do then Mueller and his team to repay every dime spent outside their mandate.