It has been 16 months this week since Deputy Attorney General Rod RosensteinRod RosensteinWashington still needs more transparency House Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week MORE appointed Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE III as a special counsel to “investigate any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE,” as described in Mr. Rosenstein’s May 17, 2017, letter appointing the special counsel.
But that appointment letter ignored the Department of Justice’s (DOJ) special counsel regulations set forth in 28 CFR SEC. 600 et seq., and the standards and regulations published by the DOJ in the “Domestic Investigations and Operations Guide” (DIOG) that require a predicate criminal offense before an investigation can be commenced.
Under the department’s guidelines, the agency is permitted “to conduct investigations to detect, obtain information about, and prevent and protect against federal crimes,” requiring some reasonable basis for commencing an investigation after having first identified “a particular crime or threatened crime.” Yet, the authorizing letter appointing the special counsel contained no “particular crime or threatened crime” by the president or his campaign, and none has been identified since, despite issuance of a later memo on Aug. 2, 2017, purporting to amplify the earlier appointment.
The president has now retracted his recent request for declassification and release of DOJ/FBI material that would shed defining light on the supposed crime (or, perhaps, lack thereof). It would be important in addition to have full, unredacted disclosure of the August 2017 Rosenstein memo to Mueller elaborating on his mission about which there should be no secrecy. But the DOJ and, now, the United Kingdom appear determined to continue to resist disclosure.
This is a puzzling reversal by the president. There are few if any “sources or methods” that would be revealed by disclosure of the material requested. Nor would — or could — disclosure of the suspected crime interfere with the Mueller investigation. The United Kingdom’s interest appears to be related to protecting a British citizen, who contributed to the FISA warrant, from any further exposure to transparency. But his role already has been amply revealed (i.e., the “Steele dossier”). Disclosure of all of the details to identify what crime is involved (if any) would not subject him to any significant additional exposure.
Why is identification of the suspected crime so critical? The principal reason is that a special counsel, like independent counsels under a now-expired statute, would otherwise have unlimited jurisdiction to inquire into any person's life in search of a crime — the identification of which is required for regular U.S. Attorneys to issue subpoenas.
This, then, would be a complete perversion of the American tradition of investigating crimes, not persons, as so eloquently articulated by then-Attorney General (later Supreme Court Justice) Robert H. Jackson in 1940, when he observed that the prosecutor’s “most dangerous power is ‘that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.’”
That is why the independent counsel statute, which was triggered by Watergate but allowed to expire in 1999, required the identification of suspected "SERIOUS federal crimes" (emphasis added) before investigation could commence. It was this limitation which formed much of the basis for the Supreme Court's decision to approve a limited carve-out from the president's authority over the executive branch under the separation of powers. There are now, of course, no statutory restrictions on the president's removal power, but the political constraints are every bit as binding and relevant — else special counsels would be liberated to roam the countryside indefinitely in search of crimes to pin on some people whom other people view as unpopular.
There was already pending a counter-intelligence investigation under President Obama. But it would not have been necessary to assign any prosecutor, much less a special counsel from outside the Justice Department, to conduct such an investigation. That, no doubt, is why the special counsel regulations do not authorize an appointment in a counter-intelligence case.
There is now an abundance of information gleaned from the redacted FISA warrants and other materials to know that, in commencing this investigation, the Department of Justice blurred the lines between counter-intelligence and criminal investigations and the rules that are supposed to govern each.
The president should renew his request for declassification of the materials related to the commencement of this investigation. Mr. Rosenstein should desist from countering the president’s original decision.
Only by revealing publicly the documents and materials, coupled with a statement specifying the criminal predicate involving “coordination/links” between the Trump 2016 campaign and Russia, can the public retain the historic protections against prosecutorial abuse.
Michael Mukasey served as the 81st U.S. Attorney General from 2007 to 2009. He previously was a judge of the U.S. District Court for the Southern District of New York, including six years as its chief judge, and was an assistant U.S. attorney for the Southern District.
C. Boyden Gray served as U.S. Special Envoy for European Affairs from 2008 to 2009 and as U.S. Ambassador to the European Union from 2006 to 2007. He was White House counsel to President George H.W. Bush from 1989 to 1993. He is a founding partner of Boyden Gray and Associates, a Washington-based law firm.