Andrew C. McCarthy:
We all knew what Watergate was. We knew what Iran-Contra was. And the Lewinsky scandal. And the purported outing of Valerie Plame. Up until now, each time a special prosecutor has been sicced on a presidential administration, we’ve known what the allegations were. Our views about whether the conduct involved warranted such debilitating scrutiny may have diverged sharply. But at least we knew what the investigations were about, what the presidents and/or their subordinates were accused of doing.
That’s because what they were accused of doing was criminal. You need a prosecutor only to investigate crime.
The id-in-chief is on the verge of forcing his attorney general out — and with him, much of the conservative base that got past its wariness of Donald Trump because of Jeff Sessions’s support. Yet, as the appearance of scandal engulfs the administration, we still don’t know what crimes Trump and his subordinates are suspected of committing. Or even if they are suspected of committing crimes at all.
Mind you, the “Russia investigation” — the investigation with no specified crime — has already factored heavily in the dismissals of a top White House staffer and the head of our country’s premier investigative agency. Now it seems the nation’s top federal law-enforcement officer is on the brink. There is background noise about indictments, pardons, and impeachment. But we still don’t know what the allegation is. Or if there is one.
At the risk of trying our readers’ patience, I am going to beat a dead horse I’ve been wailing on since the first days of the Trump-Russia controversy. I do it because someday we may look back and realize the debacle was driven by the confusing label of “counterintelligence investigation,” which has obscured, well, everything.
The confusion starts with the label itself. When you hear “investigation” you think crime. But counterintelligence is not about rooting out crime; it is about divining the intentions of foreign powers. It is not enough to say that crime is not its focus. Crime is not permitted to be its focus.
In the counterintelligence context, because the government is not trying to build a criminal case, the constitutional protections that apply in criminal investigations are significantly diminished. Thus, if the government pretextually exploits its counterintelligence authorities to conduct criminal investigations, serious legal problems arise. The 9/11 controversy over “the wall” — the infamous regulations that prevented information-sharing between counterintelligence and criminal agents — occurred precisely because the Justice Department was overeager to demonstrate its determination to keep the two realms separate.
Counterintelligence work would be more accurately described as “information gathering and analysis” than as an “investigation.” Investigations are about collecting evidence in order to prosecute crimes.
This is expressly reflected in federal regulations — specifically, the ones that control when a “special counsel” should be appointed and when an attorney general should recuse himself. These things come into play only when criminal activity has occurred. They are not applicable to counterintelligence probes, which usually don’t involve prosecutors at all.
There is a need for an attorney general to disqualify himself, or for a special counsel to be appointed, only when the AG or the Justice Department at large is beset by a conflict of interest. How do we know whether there is such a conflict? We look at the known crime, or the factual basis for suspecting a crime. We then ask whether some political or personal connection to the criminal transaction under examination disqualifies the AG or the Justice Department from participation. To answer the question, “Is there a conflict?” we look at the criminality that must be investigated or prosecuted.
Don’t take my word for it. Let’s look at the pertinent regulations, excerpted below (with my italics). Here is the one (28 CFR 600.1) that governs special-counsel appointments by the Justice Department:
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and — (a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and (b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
Could it be clearer? A special counsel is not to be appointed unless and until it is determined that there are grounds for a criminal investigation. Only if that is established does the Justice Department move on to the question whether there is a conflict of interest. The answer to that question, in turn, hinges on the Justice Department’s relationship to the criminal investigation or prosecution. If there is no criminal investigation or prosecution, there is no reason to discuss appointing a special counsel.
Let’s assume there is an appointment. How do we know what the special counsel is authorized to investigate? We go to the regulation that controls the special counsel’s jurisdiction (28 CFR 600.4). In pertinent part, it says:
The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated.
What is the “matter to be investigated”? We know from the earlier quoted regulation, governing when a special counsel may be appointed, that the matter to be investigated must be criminal. If it is not, there is not supposed to be a special counsel in the first place. Consequently, the “specific factual statement” must describe the criminal transaction(s) that have triggered the need for a special counsel.
What about the recusal of an attorney general — what triggers that? Recusal is governed by a regulation that Attorney General Sessions cited when he recused himself from the “Russia investigation.” The regulation (28 CFR 45.2) is entitled, “Disqualification arising from personal or political relationship.” The relevant part states (again, my italics):