The Scope of the Special Counsel Appointment Is Totally Inadequate

Rod Rosenstein just appointed former FBI Director (and, before that, US Attorney) Robert Mueller as Special Counsel to take over the investigation into Trump and his associates.

I’m agnostic about the selection of Mueller. He has the benefit of credibility among FBI Agents, so will be able to make up for some of what was lost with Jim Comey’s firing. He will be regarded by those who care about such things as non-partisan. With Jim Comey, Mueller stood up to Dick Cheney on Stellar Wind in 2004 (though I think in reality his willingness to withstand Cheney’s demands has been overstated).

But Mueller has helped cover up certain things in the past, most notably with the Amerithrax investigation.

My bigger concern is with the scope, which I believe to be totally inadequate.

Here’s how the order describes the scope:

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

As I read this, it covers just the investigation into ties between the Russian government and people associated with Trump’s campaign. Presumably, that includes Mike Flynn, Paul Manafort, and Carter Page, among others.

But there are other aspects of the great swamp that is the Trump and Russia orbit that might not be included here. For example, would Manafort’s corrupt deals with Ukrainian oligarchs be included? Would Flynn’s discussions with Turkish officials, or Rudy Giuliani’s attempt to excuse Turkey’s violation of Iran sanctions? Would the garden variety money laundering on behalf of non-governmental Russian mobbed up businessmen be included, something that might affect Manafort, Jared Kushner, or Trump himself?

And remember there are at least two other aspects of the Russian hacking investigation. Back in February, Reuters reported that San Francisco’s office was investigating Guccifer 2.0 and Pittsburgh was investigating the actual hackers.  Somewhere (San Francisco would be the most logical spot), they’re presumably investigating whoever it is that has been dumping NSA’s hacking tools everywhere. I’ve learned that that geography has either changed, or there are other aspects tied to those issues in other corners of the country.

Plus, there’s the Wikileaks investigation in EDVA, the same district where the Mueller-led investigation might reside, but a distinct investigation.

Any one of those investigations might present strings that can be pulled, any one of which might lead to the unraveling of the central question: did Trump’s associates coordinate with the Russian government to become President. Unless Mueller can serve to protect those other corners of the investigation from Trump’s tampering, it would be easy to shut down any of them as they become productive.

Yet, as far as I understand the scope of this, Mueller will only oversee the central question, leaving those disparate ends susceptible to Trump’s tampering.

Update: In its statement on the appointment, ACLU raises concerns about whether this would include the investigation into Trump’s attempt to obstruct this investigation.

Update: WaPo’s Philip Rucker reminds that Mueller is law firm partners with Jamie Gorelick, who has been representing both Ivanka and Kushner in this issue.

Update: Mueller is quitting WilmberHale to take this gig. He’s also taking two WilmerHale former FBI people with him. Still, that’s a close tie to the lawyer of someone representing key subjects of this investigation.

Update: One addition to the ACLU concern about investigating the Comey firing. In the most directly relevant precedent, the Plame investigation, when Pat Fitzgerald expanded his investigation from the leak of Plame’s identity to the obstruction of the investigation, he asked for approval to do so from the Acting Attorney General overseeing the investigation — in that case, Jim Comey.

The Acting Attorney General in this case is Rod Rosenstein. So if Mueller were as diligent as Fitzgerald was, he would have to ask the guy who provided the fig leaf for Comey’s firing to approve the expansion of the investigation to cover his own fig leaf.

Update: Petey noted to me that Jeff Sessions’ narrow recusal may limit how broadly Rosenstein’s order may be drawn. It’s a really interesting observation. Here’s what I said about Sessions’ recusal (which is very similar to what I tried to address in this post).

There are two areas of concern regarding Trump’s ties that would not definitively be included in this recusal: Trump’s long-term ties to mobbed up businessmen with ties to Russia (a matter not known to be under investigation but which could raise concerns about compromise of Trump going forward), and discussions about policy that may involve quid pro quos (such as the unproven allegation, made in the Trump dossier, that Carter Page might take 19% in Rosneft in exchange for ending sanctions against Russia), that didn’t involve a pay-off in terms of the hacking. There are further allegations of Trump involvement in the hacking (a weak one against Paul Manafort and a much stronger one against Michael Cohen, both in the dossier), but that’s in no way the only concern raised about Trump’s ties with Russians.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

33 replies
  1. David H Remes says:

    Marcy – Is there any doubt that the order authorizes the special counsel to investigate Trump’s inference with the Flynn investigation, including Comey’s dismissal?

    • bmaz says:

      David, no, no doubt whatsoever from what I see.

      That said, I am not nearly as troubled by the tasking scope as Marcy is. In fact, I think subsection (ii) taken with Comey’s previous description of scope depicted to Congress, gives Mueller pretty much as much initial leeway as he needs. And in one small measure of fairness to Rosenstein, he specifically promised the entire Senate today that there would be no interference in wherever Mueller decides to go. So, for now, at least, I am okay with the tasking scope.

  2. desack says:

    Great points. You swayed me on the need for this, and the efficacy of having one in your interview with Sam Seder, on the Majority Report the other day. This is a pressure release to save Republicans, IMO. Right-wingers in the US (most powerful people too), are basically above the law. The only exception is when the outrage is just too much and they need a pressure release. This will end up just like with Scooter Libby, the ONLY person who lied us into the Iraq War. /s

  3. dwayne stephenson says:

    It might all get swept under the rug, but this does seem like the kind of thing where people who think they can cover their ass by limiting which rugs can be looked under fuck up and pick the wrong rugs.

  4. SpaceLifeForm says:

    So did Rod Rosenstein read the heiroglyphs in the trump cave? Above the loyalty stone?

    Can the fig leaf get bigger if he is fired or quits? Guess he will not care now.

  5. earlofhuntingdon says:

    As you point out, limiting half of the equation to “officials” of the “Russian government” is an exception that might swallow the rule, the designing of which is an art only the British do better than do Beltway denizens.

    Does that include former or only present “officials”? Who qualifies as an official? What about the myriad of cut-outs and go-betweens Putin almost surely uses, from Russian mobsters to bankers to western lobbyists? And what about connected people and governments who aren’t Russian but who are closely tied to Putin or to an oligarch, one or more of whom may be tied to the financing of one or more Trump ventures? Ditto on the Trump side of the equation.

    As others have noted, there are also large questions here that go beyond whether specific crimes have been committed. For those, we need a broader investigation and public airing or they will continue to fester, as did all the questions about Nixon that were conveniently buried by Ford’s pardon.

    • Avattoir says:

      Where in USDoJ Order 3915-2017 do you see the term “officials”, or the word ‘official’?

      The term “the Russian government” appears in Order item (b) (i). As framed, it does not appear to restrict the interpretation of that term in any particular.

       

      Order item (b) (i) is framed in relation to Order item (b), which contains this phrase:

      “the investigation confirmed by then-FBI Director James 8. Cormey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017”.

      So item (b) (i) can be read in the manner of identifying preamble, as among the subjects ‘included’ in the greater whole, that “investigation”.

      If (b)(i) were to be read as RESTRICTIVE, I’d expect to see phrases or words conveying that intention, eg. ‘limited to’ (among a number of such phrases commonly used in governmental bureaucratic missives, such as policy directives, regulations & statutes). I do not see any such phrases or words anywhere in the Order.

      **

      Otherwise, for now I’m pretty much in the camp of Zhou En Lai on the French Revolution as to how this pig might fly.

      1. The scope of the reference in Order item (b)(ii) turns materially on what “directly” means.

      Note that the language context used in Order 3915 is one in which the word ‘and’ very often can, though does not necessarily, include the concept ‘or’. This is ‘just’ an example, but it’s actually a real one from that world,  and IMO both instructive &  illustrative.

      2. If I had to pick the clearest line drawn in Order 3915, it would be easy: item (b)(iii).

      Yes, ‘David H. Remes’, right there is the authority to pursue obstruction of justice.

      3. I concede there could indeed be much room for bureaucratic infighting over the intent, meaning and scope of Order 3915 than I’m seeing now in the abstract. IMO a lot depends on the warriors who will engage in those battles.

      For instance, I see Mueller more in the role of our first president, overseeing the general effort and impression with the gravitas of his rep & the Sterno of his visage. He’s 73 in August, folks: in my experience, the hard slogging, including day to day direction of those highly paid jobs he’s been receiving on referral at the private law firm he’s been making big bucks at since 2013 have been done by others.

      I have yet to see the names of that firm’s two former Mueller-era FBI associates he’s said to be bringing along with him. It may turn out pretty darned important to know their identities; I think it’s those 2 who will be running this.

      Rosenstein is, of course, not out the chain of command here, so remains vulnerable to the weirdness of Bannon, the self-serving schemes of Kushner, & Trump’s moodswings.

      If past is prologue, we can anticipate Sessions working, ‘directly and indirectly’ if you will, to gum up the works. It can’t hurt the Special Counsel’s cause that Sessions is just not good at law except when squared off against unrepresented slave & sharecropper descendants in Alabama.

      The R Congressional legal ‘talent’ is thin to silly in the House, and doesn’t nearly match the legal leadership on the D side, so I’m not particularly worried for there except in terms of R critters causing delays. The Senate is an entirely different zoo, but again the legal talent favors the D side. Whether the Ds legal talent advantages in Congress are sufficient to overcome the raw malevolent employment of Stupid Power in the House, and the arcane underhanded machinations that no doubt will feature in the Senate, remains TBD.

      But there’s no point in fretting & worrying over all the coming delays & b.s.: those are inevitable. Everyone on the good guy side is just going to have to keep slogging every day, going inch by inch: IMO this isn’t going to replicate 18 months of pressure on the forces of Nixon then cascading failure – it’ll be trench warfare all the way, and even ‘victory’ is going to seem miserly.

      • emptywheel says:

        Thanks for the close analysis. I hope you’re right on the language, and I think you might be right on Mueller. I did see the two names and vaguely recognized them when I saw them, but now I forget where I put that link. I do imagine they’ll be doing day to day.

        • Avattoir says:

          Some here will have noticed Toobin has a piece up on this:

          http://www.newyorker.com/news/daily-comment/a-special-rule-for-robert-mueller

          Specials are pretty freaking rare, so I’m not inclined to cast a total downer on Toobin’s speculation on Mueller’s report (assuming this appointment lasts that long) to Rosenstein (assuming he lasts as DAG that long) getting published. But FWIW, here’s an observation about government prosecution culture:

          Over years I was in that racket, on the line or supervising, close-out reports were routinely required for a range of cases broad enough to catch anything actually or potentially ‘important’ or controversial. This estimate goes back some decades, but colleagues & I once figured out this meant some number of such close-out reports well in excess of fifteen thousand were produced every year – just out of the US attorney system, and for the most part involving must those cases where indictment issued for at least one count.

          How many of those went public? Of those produced out of offices where I worked while I worked there, under ten; I actually only retain a vivid memory of 4 – two of which were released purely for their comedy content in the context of bar social events (Even those had redactions.).

          Point being: Rosenstein likely has written hundreds of case close-out reports &, given his seniority, quite possibly has read them in the thousands. I’d be surprised if contents from more than a few of those ever got published. They’re not produced for publication & there’s a lot of culture resistance to the very idea.

  6. arbusto says:

    Reading Order No. 3915-2017 (INAL)…
    (b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:
    (i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and
    (ii) any matters that arose or may arise directly from the investigation; and
    (iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
    (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.
    (d) Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

    Seems pretty clear Mueller can do what the fuck he wants (if given the resources). Read the code.

  7. Joe F says:

    It seems to me that any collusion with Russia HAD to be people with deniability on the extreme distant outer orbits of Trump’s campaign people. I just hope they look into Erik Prince and all of those people–not just Page, Manafort, etc.

    As much as I hate this overflowing word-toilet of a toddler-man, I don’t think we have the cultural memory to hold anything against the GOP for this mistake, and I see Pence as more effective at pushing the agenda to which I’m opposed. So even though it’s mentally fatiguing, I think 4 years of this high-speed slap-stick insanity might be for the best.

    • ron says:

      Agree with Joe’s warning about Pence replacing Trump… with one caveat.  It seems to me that Mr. Trump is far more likely to trigger a new war, perhaps nuclear, than Mr. Pence.

  8. TomVet says:

    I know these guys like to be cute with their interpretations but this looks fairly broad. He gets to take over the current investigation started by Comey. Of course we don’t know exactly how much that already covers, so there is that.

    Then he gets anything that arises from that investigation. That may be a whole lot of stuff depending how much info he can access. We know they will try to hide the football as much as they can.

    But §604(a) covers all the obstruction, interference, perjury, intimidation, etc that may be involved, which should take care of the second part.

    What am I missing that makes you think it is too limited?
    Edit: Didn’t see the previous comment in time; sorry I repeated the points.

    • emptywheel says:

      My concern is that there is already a great deal of stuff that is not arising out of the EDVA case. So I worry that Mueller won’t be able to say, “hey, that SDNY investigation that has people lined up to narc on Manafort? Jeff Sessions just moved the AUSAs investigating it to Alaska, so I feel like I need to subsume it into my investigation to protect it and the ability to get to Manafort.”

  9. earlofhuntingdon says:

    Erratic behavior, extravagant narcissism wedded to a lack of discipline, and a pattern of arguably impeachable offenses: we can only hope that Mueller’s appointment sounds the death knell of this brief, dangerous experiment in presidential waywardness.

    Lawrence Douglas writing at the Guardian.  To be fair, one needn’t have been as informed about Trump as David Cay Johnston to have seen that behavior abundantly displayed during the campaign and for decades before.

    Mr. Trump’s response will surely be to double down on his aberrant behavior, which is likely to make Mr. Nixon look cool, calm, collected and well-shaved.  (The more interesting show will be the scurrying of those disembarking from the USS Trump.)

    Mr. Nixon’s history demonstrates that, media hand-wringing aside, the Republic is sufficiently well-built to withstand anything Mr. Trump and his die-hard supporters can throw at it, notwithstanding the damage done to it by decades of neoliberal actions.  Of more concern is that before the dust settles, we not let the establishment – and especially its media – successfully sell the line, as they did after Ford’s pardon of Nixon, that having too much democracy is a bad thing.  Rick Perlstein should now be regarded as essential reading.

     

  10. earlofhuntingdon says:

    As Marcy notes, expansion of the Special Counsel’s jurisdiction beyond this letter of appointment is dependent on approval from Rosenstein, or whomever is acting as AG at the time the question arises.  And although Mueller can make recommendations to the AG regarding it, taking action with regard to non-criminal liability is explicitly beyond the Special Counsel’s jurisdiction.

    As I said above, an important public interest at play here is to have a wide scope of issues investigated, documented and made public.  Loss of office and potential criminal liability for Trump and/or his associates is only the tip of the spear.

  11. christopher o'loughlin says:

    Marcy,
    Thank you for your insight and succinct summation of Special Counsel vs Prosecutor. Amerithrax is an apperant numinous mystery thanks in part to Mueller’s leadership.

  12. wayoutwest says:

    It’s not surprising that some snowflakes are having buyers remorse now that they have their SC. He is not even being identified as a special prosecutor because there is nothing to prosecute from the Russian hack/cooperation fiasco. The snowflakes foolishly believed that Trump’s DOJ would give them access to an open ended unrestricted witch-hunt for at least the next two election cycles. This is not happening and an adult has been tasked with wrapping up the investigation that has never found or shown any evidence of wrongdoing.

    Specious claims issuing from unidentified sources such as giving the Russians our secrets or Comey begging for aid from congressmen for this investigation may continue but Muller should be able to bring some order and quash rumors without evidence.

    All of this rumor mongering and witch-hunting is effective during the accelerated election cycle but this fiasco should wrap up and be forgotten by the next election and the Clintonites will have to find another meme to deflect voters attention from their serial failures and loses.

    I thought the unverified ‘obstruction of justice’ meme might gain some traction as a serious charge but even that rumor is weak. Flynn was subject to a  counterintelligence investigation not a criminal investigation so there was no justice issue being obstructed, if it even happened.

  13. earlofhuntingdon says:

    The flurry of news about Flynn today includes that McGahn and Pence, as head of the Trump transition team, would have known that Flynn was already under FBI investigation at the time Trump formally nominated him to be NSA, which undercuts any “surprise” Trumpistas claim to have experienced upon “learning” about Flynn’s indiscretions.  (As if Flynn having been fired as head of the DIA wasn’t enough of a red flag.)

    Pity that Trump had as much awareness of proper vetting of his top staff as he does about any other aspect of governance.  (Has no one ever dared tell him ignorance is not always bliss?)  Pity, too, that none of the Goopers on the Senate committee approving Flynn’s nomination as NSA had the slightest interest in doing their jobs rather than in expressing their loyalty to Donald Trump.  After all, the NSA is only the vortex through which the government’s most prized secrets flows.

  14. SpaceLifeForm says:

    AntiVirus vendors may be blocking Wannacry (some), but it does not mean that they are blocking EternalBlue (and DoublePulsar).

    Securing Windows is hard. Actually, any OS.
    All computer and network security is hard work, seriously hard work.

    Ask the NSA and CIA how hard of a job it is.
    They can tell you about ShadowBrokers and Vault7.

    So far, 3 of 11 tested are doing it.

    https://www.mrg-effitas.com/eternalblue-vs-internet-security-suites-and-nextgen-protections/

  15. earlofhuntingdon says:

    What’s wery, wery, wery hard for American “unity” is you Mr. President (although perhaps not in the manner you imagine), and your politics of divide, promise, ignore and profit.  Ignorance, bluster and gaming the system, plus a modicum of numeracy may be suitable for flipping real estate in New York City (plus a willingness to stiff contractors, suppliers, partners and the city), but that’s a game largely played in the shadows, barring the occasional theater of wealth and “development” sold to the public from time to time.  Inside the Beltway, it’s another game entirely.  One you seem bound and determined to lose in record time.

  16. rugger9 says:

    The only real fly in the ointment this time around is that until now Mueller has apparently been at a firm that represents Jared, Ivanka and Manafort.  That’s the part that has me worried.  However, Mueller may also be out of f&%^ks to give (h/t Charlie Pierce) and be even more likely to tell off the WH.

    The timing has been noticed as well.  The theory is that deputy AG Rod Rosenstein appointed him without a heads-up to the WH and before the new FBI director could be named because he did not like being thrown under the bus by Trumplestiltskin on the Comey firing.  It’s about the best that could be hoped for until a truly independent commission is formed with subpoena power.

    I think the only real questions to come if the Trumpies cannot spike the investigation or control the message is how wide the net will be dragging the GOP down.  Ryan’s on tape in June 2016 saying Trump was a Putin puppet (he first denied it until told there was tape, now it’s only a “joke”); Pence was head of the transition team told multiple times about Flynn and other peccadillos and did nothing, then lied about it.  How about “bearing false witness” Mikey?  The Lord hates hypocrites in particular, and does not include any qualifications such as the “ends justify the means” exemption tried out here.  McConnell was the sole person preventing Obama from release of the Trump investigation updates in the summer before the election, as well as other slow-walking the investigation sins.

    It might be why Ajit Pai’s trying so hard to kill net neutrality, because then Trump can lean on the big ISPs to filter out stuff like was done in the Soviet Union and now in the People’s Republic of China.  Try searching for Tiananmen Square in China on a PRC-controlled system if you doubt me.

     

  17. Petey says:

    My question:

    As Marcy is already aware, the Sessions recusal itself was very limited in scope, and aligns almost perfectly with the SP’s mandate.

    So, I wonder if that meant there were legal limits on broad a scope Rosenstein could give the SP. I also wonder if that means applications from the SC to broaden the scope would go to Rosenstein, or if they would go to Sessions, since he only recused himself from essentially the same scope Rosenstein gave the SP.

  18. lefty665 says:

    Help please. How does Mueller work with Boente?  Does he replace his investigations, take them over, direct the USA, or what?

  19. JC says:

    We’re aware of Mueller’s record hushing and hiding 9/11 whistleblowers within the agency, yes? (see Phoenix Memo or Colleen Rowley’s testimony to Congress)… He’s deep state republican all the way. The whitewash has already begun.

    • bmaz says:

      Who you calling “we” Kemosabe?

      You are really going to blame Mueller for “hushing and hiding” Rowley and Kenny Williams? Mueller was on the job less than a week when 9/11 occurred. And when the critical acts of Williams and Rowley should have been percolating, he was not even yet at the Department. But, sure, you should totally roll with some “deep state” garbage.

  20. Demeter says:

    The Headline:
    THE SCOPE OF THE SPECIAL COUNSEL APPOINTMENT IS TOTALLY INADEQUATE
    begs the question: inadequate for what? What is the goal of a special counsel, in general?

    Well, we really don’t know, as such a creature is undefined. It doesn’t appear in the Constitution nor in the body of law. Therefore it hasn’t any defined standing in politics or law.

    So the Special Counsel is whatever the Justice Department decides it is, and the public has no recourse or ability to direct its actions through either the President nor the Congress.

    Doesn’t smell like a representative democracy to me. Smells like mischief, especially  given the total lack of hard evidence of crime or impeachable offense presented to date.  While the SC may serve as a channel for airing political differences, it is more like an extended fishing expedition. Been there, done that, caught nothing.

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