Many Trump supporters are calling for Special Counsel Robert Mueller to be fired, especially in view of the recent Mueller-inspired raid of the attorney-client files of Trump lawyer Michael Cohen. All leading opposition officials, and indeed many conservatives, are strongly opposed to terminating Mueller. But all of them, to be sure, are addressing the wrong issue.
Mueller cannot be fired for cause, since he is doing exactly what he is charged — explicitly and implicitly — with doing: exploring, in any legal way within his power, the possibility of criminal collusion with Russian electoral interference. However, Deputy Attorney General Rod Rosenstein is not doing his job: ensuring that Mueller does not stray beyond reasonable boundaries to coerce witness cooperation through wholly unrelated crimes.
Many conflate the powers of the special counsel with those of the now-extinct independent prosecutor. The latter, a creation of statute, was empowered to range wherever he deemed appropriate to get his man. Whitewater became Paula Jones became Monica Lewinski. A real estate snow job morphed into an intern’s, well, you get the point. Both sides of the aisle saw this unfettered discretion as an out-of-control cancer metastasizing throughout our system, and all agreed to pull its life support in 1999. The best description of the rationale behind ending this unsupervised role was provided by a Department of Justice official Neal Katyal in testimony before Congress in 2008:
In the past, independent counsels have been criticized for excessive zeal in performing their duties. Without significant oversight, or meaningful limits on their budget or jurisdiction, independent counsels could simply keep digging until they found dirt. Moreover, the requirement to submit a final, public report created a heavy incentive to justify their often significant expenditures by producing at least some evidence of wrongdoing. Once appointed, they could, and often did, investigate their target until they found some sort of evidence of wrongdoing, whether or not it was related to their initial charge. (Emphasis supplied.)
Accordingly, regulations now require that the attorney general describe special counsel’s jurisdiction with “a specific factual statement of the matter to be investigated.” (28 CFR 600.4(a)), which in turn should be a “criminal investigation” (28 CFR 600.1).
If special counsel wants to go into additional matters in order to “fully investigate and resolve” these matters, the attorney general will “determine whether to include the additional matters within the Special Counsel’s jurisdiction” (28 CFR 600.4(b)). Those additional matters, it should be reasonably inferred, should be specifically defined within the Attorney General’s approval.
While the regulations allow the special counsel day-to-day authority over his investigation, they do empower the attorney general and Department of Justice to provide broad supervisorial oversight, specifically designed to limit investigative overreach. For instance, the attorney general may ask the special counsel to explain a particular action or step he is about to take and may disapprove and prohibit it:
The Attorney General may request the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established departmental practices that it should not be pursued. See 28 CFR 600.7 (b).
In a perhaps more significant, but often overlooked, requirement of Section 600.7, the special counsel has to comply, as would any federal prosecutor, with the various DOJ policies, practices and procedures:
Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department…
This latter provision of 28 CFR 600.7(a) is highly significant, even though appearing to be so much boilerplate. For example, any prosecutor in the country must get explicit departmental permission and guidance before pursuing any investigation into election law violations, public corruption, sensitive matters involving foreign countries, or pursuit of attorney-client files.
The overall takeaway from the above is that Rosenstein has plenty of tools in his box that he is required to use to keep the special counsel in his defined lane.
Rosenstein, however, started off poorly and got worse. His original appointment of Mueller on May 17, 2017, referred to James Comey’s testimony before the House and authorized investigation into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The problem? Comey’s investigation was a counterintelligence one, and Rosenstein did not describe a crime in his appointment. A “link” or “coordination” is not a crime, even if with bad guys. So Mueller was free to determine the crimes he was pursuing.
On August 2, 2017, Rosenstein did not purport to authorize an “additional” investigation into Paul Manafort but stated that he was simply confirming two “specific” investigations within his original grant of jurisdiction. He defined as one area criminal collusion with Russian electoral interference. Okay, so far.
He also added that Mueller could investigate “crime or crimes arising out of payments received from the Ukrainian government…”
Two big problems thereby arose. First, Ukraine is not Russia by another name. Comey did not testify, nor was there an investigation, into Ukrainian interference. Secondly, and more significantly, how far could Mueller go investigating Manafort’s Ukrainian payments? No “specific factual statement” (28 CFR 600.4(a)) was given.
If the Ukrainian payment was for the purpose of electoral interference, this grant would seem reasonable, even if technically beyond the Appointment’s jurisdiction. But if Manafort were to use some Ukrainian money for, say, buying New York cocaine illegally, can Mueller investigate and charge Manafort? Apparently so, since he charged Manafort with buying New York property illegally.
So Rosenstein’s grant to Mueller, it turns out, was so broad as to be formless. Did anyone in this country think, when Mueller was appointed, that he was empowered to investigate a campaign official for tax evasion having not anything to do with the 2016 election? Maybe Rosenstein did, although we doubt it.
But apparently we hadn’t seen nothing yet. The Mueller inquiry raised new troubling questions when the Cohen offices were recently raided, seemingly directed toward the Stormy Daniels fiasco, but also likely aimed at a “catch and crush” payment by the National Enquirer to another Trump accuser Karen McDougal. The clear purpose for Mueller’s referral was to turn Cohen into Mueller’s witness or to get goods directly on Trump for Mueller’s use in his inquiry. Mueller was not making this referral, in short, simply to help the U.S. attorney in Manhattan.
A textbook could be written about the attorney-client issues raised by the Cohen searches and seizures. For our present purposes, though, the key questions posed go to Mueller’s involvement in the Cohen matter. Has Rosenstein, who specifically approved the raid, approved a Mueller cooperation agreement with the acting United States attorney in Manhattan, whereby he can use the evidence gained in this inquiry? If he has, in effect Mueller, with Rosenstein’s permission, has made a U.S. attorney his agent and has in fact expanded his investigative reach into all things Stormy Daniels. From a purely prosecutorial point of view, more power to Mueller. But is that power lawfully granted? No.
So this borderless expansion of what the law meant to be a defined investigation raises profound questions for our society. The special counsel was appointed originally without any probable cause identifying a crime committed by one with a conflict of interest, or for that matter, any crime at all committed by a United States citizen. Now, in an effort to prosecute, or, yes, impeach, a sitting President, a special counsel, doing his job well and aggressively, but with no supervision, has become in effect an Independent Prosecutor, answerable to no one, going whenever he chooses, continuing until he nails his target.
Some speculate that Rosenstein himself fears investigation into his own conduct regarding the Steele Dossier, but the more likely explanation for his lack of any broad supervision is simply that he is a cautious man yielding to an impressive prosecutor, avoiding the controversy that would come with upsetting Mueller’s apple cart.
But whatever his motives for his past laissez faire, he still maintains the statutory power to rein in the Special Counsel, keeping him within the bounds for which he was, we all presumed, appointed – investigation of collusion with illegal Russian electoral interference. How he does that, now that the horse is almost completely out of the barn, is a more difficult question. But it should be done, with reasonable commonsense guidelines put in place by the Department of Justice as to where he can and cannot go within the investigation. One would think that the line should at least be drawn in advance of Stormy Daniels territory, and Mueller should be forbidden from yes, collusion, with the Manhattan prosecutor.
The law encourages this supervisorial action, and indeed requires it if actions are unwarranted or inappropriate. Supervising Mueller may arouse outraged cries, but to avoid meaningful supervision is to hurl our country into irreconcilable division. So we hope that Rosenstein will finally do his job and broadly supervise the Special Counsel, not fire him, for which he has no cause.
In sum, Mueller is doing his job. It is time that Rosenstein does his — failing which, Rosenstein, not Mueller, should be terminated or recused.
John D. O’Connor is the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the co-author of “A G-Man’s Life: The FBI, Being ‘Deep Throat,’ and the Struggle for Honor in Washington” and is a producer of “Mark Felt: The Man Who Brought Down the White House” (2017), written and directed by Peter Landesman.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.