After more than one year investigating claims of collusion between the Trump campaign and Russia, Robert Mueller’s special counsel team has exposed exactly zero evidence of misconduct involving the president in the run-up to the 2016 election. This absence of proof has prompted calls for an end to the special counsel investigation.
What should be garnering our attention, though, is not that there is no indication of collusion, but that there is evidence Deputy Attorney General Rod Rosenstein’s appointment of a special counsel violated the Constitution, federal regulations, and his authority as acting attorney general. Let’s take these problems in reverse order.
Rosenstein Overreached His Authority Big Time
On March 2, 2017, Attorney General Jeff Sessions issued a statement announcing his recusal “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Sessions’ recusal elevated Rosenstein to acting attorney general with respect to the matters from which Sessions had recused.
A little more than two months later, on May 17, 2017, as acting attorney general, Rosenstein appointed Mueller to serve as a special counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation; and any other matters within the scope of 28 C.F.R. § 600.4(a).”
Section 600.4(a) provides a special counsel the authority “to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
Then on August 2, 2017, Rosenstein dispatched a memo to the special counsel purporting to clarify Mueller’s authority, stating: “[t]he following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the Order: Allegations that Paul Manafort [c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”
Mueller’s office later charged Manafort in two separate indictments: one in the DC district court, charging multiple counts of money-laundering and failing to register as a foreign agent for Ukraine, and a second indictment in the Eastern District of Virginia, alleging counts of tax evasion, bank fraud, and failure to report foreign accounts. Manafort sought to dismiss both indictments, arguing Mueller exceeded his authority as special counsel to charge him with crimes unrelated to Russia’s meddling in the election.
The D.C. district court rejected that argument, while the Eastern District of Virginia has yet to rule on the motion, although the court is likely to follow suit given the expansive authority Rosenstein bestowed on Mueller.
Therein lies the first problem: Rosenstein did not have the authority to grant Mueller such wide-ranging powers because Sessions only recused as attorney general from the investigation of “matters related in any way to the campaigns for President of the United States.” Yet Rosenstein purported to authorize Mueller to investigate, among other things, “[a]llegations that Paul Manafort [c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”
This matter could not possibly have “related, in any way to the campaigns for President of the United States.” Why? Because Yanukovych was ousted from office in February of 2014—long before the 2016 run for the White House attracted Trump’s attention. Thus, Rosenstein did not have authority to direct a special counsel investigation of these alleged crimes.
This Special Counsel’s Activities Are Not Authorized
Second, in appointing Mueller as a special counsel, Rosenstein apparently ignored governing federal regulations. Those regulations are codified at 28 C.F.R. § 600.1-600.10 and limit the circumstances under which a special counsel may be appointed. A special counsel may only be appointed when, among other requirements, a “criminal investigation of a person or matter is warranted.” The regulations also require the attorney general (or in the case of recusal, the acting attorney general) to provide the special counsel “with a specific factual statement of the matter to be investigated.”
The May 2, 2017, special counsel appointment, however, referred not to a criminal investigation, but to a counterintelligence investigation. It also lacked any specific factual statement. It was not until more than two months later that Rosenstein referenced a detailed factual scenario—and one that had no connection to the presidential campaign!
Two weeks ago, Sen. Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee, wrote to Rosenstein expressing these and other concerns. After noting that “it is unclear precisely how, or whether, the Department is following its own regulations, what the actual bounds of Mr. Mueller’s authority are, and how those bounds have been established,” Grassley directed Rosenstein to respond to a series of question to explain whether (and how) he complied with the governing DOJ regulations.
Mueller’s Appointment Violates the Constitution
There is yet a third problem stemming from Rosenstein’s decision to grant Mueller such sweeping jurisdiction and power: Rosenstein’s appointment of Mueller to serve as a special counsel violates the constitution’s appointments clause.
Steven G. Calabresi, a constitutional law professor at Northwestern University Pritzker School of Law, provided an in-depth explanation of this conclusion in a recent paper. As Calabresi explained, Article II’s Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Supreme Court has interpreted the appointments clause as “constitut[ing] a vital power of the President.” Thus, Calabresi stresses, while “inferior officers” may be appointed by “the President alone, by heads of departments, or by the Judiciary,” “principal officers” may only be “selected by the President with the advice and consent of the Senate.” Also, “Congress has specified that the 96 U.S. Attorneys are all principal officers who must be nominated by the President and confirmed by the Senate.”
After analyzing controlling Supreme Court precedent and the circumstances and scope of the special counsel appointment, Calabresi concludes that Mueller is behaving like a U.S. attorney:
Mueller has acted and has behaved like a principal officer even though he was never nominated by the President nor confirmed by the Senate. In fact, Mueller is much more powerful than is a U.S. Attorney because he has nationwide jurisdiction and can indict foreign citizens and corporations without clearance from main Justice as he did when he indicted more than a dozen Russian citizens and three Russian business entities. This action had a major effect on our foreign policy with Russia. Mueller’s actual powers are greater than those of a U.S. Attorney and are akin to those of an Assistant Attorney General. It is thus crystal clear that Mueller is a principal officer.
As a “principal officer,” the Constitution’s Appointments Clause required Mueller to be nominated by the president and confirmed by the Senate. He was not. Consequently, Calabresi posits, Mueller’s appointment was unconstitutional and “[a]ll actions taken by Mueller since his appointment on May 17, 2017 are therefore null and void including all of the indictments he has brought, all the searches he has conducted included his phone-logging of Michael Cohen, and all plea arrangements he has entered into.”
Legally, Manafort and other defendants can challenge the constitutionality of the charges Mueller has lodged against them based on the appointments clause violation Calabresi exposed. Politically, though, what should be done? Ideally, Rosenstein would reign in Mueller’s reach to comply with the constitution, DOJ regulations, and Rosenstein’s own narrow authority, and then Mueller’s investigation could wrap up expeditiously.
Of course, President Trump could fire Rosenstein or Sessions (for allowing Rosenstein to deviate from his charge), but that would be a huge political blunder. Trump currently has the upper hand, as the evidence continues to mount supporting his “spygate” theme. Axing Rosenstein or Sessions would only distract from this bigger story that the mainstream media succeeded in burying for two years.
The New York Times seems wise to this fact and has moved from publishing leaks designed to soft-peddle the Obama administration’s use of an informant to trying to goad Trump into firing Sessions. On Tuesday, we saw the opening salvo when, under the guise of reporting that Mueller is investigating whether Trump attempted to obstruct justice by asking Sessions to “unrecuse,” the Times rehashed in detail the bad blood between Trump and Sessions prompted by the attorney general’s decision to recuse from the Russia investigation.
Unfortunately, yesterday Trump took the bait and responded to the article by tweeting that he wished he had “picked somebody else” as attorney general. This was a mistake: Trump should stick with “spygate” and leave Manafort’s attorneys and congressional oversight committees to address the abuse of the special counsel appointment.