Leah Litman  //  5/17/17  //  Quick Reactions


There is rarely positive news on this blog. So here’s one for the books: Whether because of the public reaction to his role in James Comey’s dismissal, because of subsequent revelations that Trump attempted to put a damper in the FBI’s investigation into Russia-related wrongdoing by Trump’s former National Security Adviser Mike Flynn, or because of the principles his defenders have insisted that he has (or because of some combination of the three reasons), Deputy Attorney General Rod Rosenstein appointed a special counsel to investigate Russia-related wrongdoing.

In my view, Rosenstein’s order appointing the special counsel provides the counsel quite broad authority. Under the order, the counsel has authority to investigate Russia’s efforts to interfere with the 2016 presidential election, any links or coordination between the Russian government and the Trump campaign, 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) of the Code of Federal Regulations is among the provisions related to the appointment of a special counsel. In addition to providing that a special counsel’s jurisdiction is established by the Attorney General, section 600.4(a) provides that the Special Counsel has jurisdiction

“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.”

(Here, the special counsel’s jurisdiction was established by Acting Attorney General Rosenstein, since Attorney General Jeff Sessions is “recused” form the investigation into Russia-related wrongdoing. Except, that is, when it comes to firing the man who was in charge of the Russia-related-wrongdoing investigation, and who, the President has maintained, was fired because of that investigation from which Sessions is recused.)

Section 600.(4)(a), which is referenced in Rosenstein’s order, would seemingly allow the special counsel to investigate efforts to obstruct the Russia-related investigation, since obstruction of justice is specifically enumerated as something a special counsel has authority to investigate. And the recent news of a Comey memo memorializing Trump’s request that Comey let go of the Russia-related investigation into Mike Flynn is, in my view, some evidence of a possibility of an obstruction of justice (or attempted obstruction of justice) into the investigation into Russia-related wrongdoing, but not the special counsel's investigation (which is what section 600.4(a) refers to).  But the order's other grant of authority to the special counsel is so broad (particularly the portion authorizing the counsel to look into matters “that arose or may arise directly from the investigation” specifically identified in the order) that some have suggested the counsel's authority extends to routine violations of the Foreign Corrupt Practices Act by Trump organizations.

The order appointing a special counsel also incorporates other provisions of the Code of Federal Regulations dealing with the appointment of a special counsel. That includes section 600.6, which gives a special counsel the “full power an independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”

Rosenstein appointed as special counsel former FBI Director Robert Mueller. Mueller led the FBI after the September 11, 2001 attacks. Former Attorney General Eric Holder praised Mueller for his integrity and fairness.

The appointment of Mueller as special counsel is a welcome development, especially because of the jarring Tuesday news (was that really yesterday?) about the Comey memo documenting what could be an attempt by the President to obstruct the investigation into Russia-related wrongdoing.

I said the news was positive. But I don’t think that the appointment of Mueller as special counsel is sufficient at this point. I say that for three reasons:

(1)    The jurisdiction of the special counsel is seemingly limited to investigations of criminal law, and applications of criminal law to whatever the facts may be. That is, Mueller’s job, at least with respect to possible obstructions of justice, is to determine whether there has been a violation of the criminal statute prohibiting obstructions of justice (or attempts at obstruction of justice). He has the powers and authority of a United States Attorney. And United States Attorneys are limited to investigations to determine whether there are prosecutable crimes—whether conduct falls within the scope of a criminal statute, and can be prosecuted beyond a reasonable doubt and with evidence that would be admissible at a criminal trial. The job of the special counsel is not to uncover what, exactly, happened.

But whether there have been violations of criminal law is no longer the only question that must be asked. The constitutional question that (in my view) was triggered by news of the Comey memo is whether the President (or his officials) committed an impeachable offense. Under the Constitution, not all violations of criminal law are impeachable offenses; but a violation of a federal criminal statute may not be a necessary predicate for impeachment. The Constitution allows the President to be impeached for “high crimes and misdemeanors.” (It lists treason and bribery as examples of an impeachable high crime or misdemeanor.) Determining what are high crimes and misdemeanors is not an act of parsing the technicalities of the U.S. Code. Rather, it requires a political judgment about what the President has done and the extent to which the President’s actions consitute a substantive abuse of his authority or otherwise threaten our constitutional order (or something else that is sufficiently important to justify impeachment).

Thus, for example, the articles of impeachment against former President Clinton did not cite violations of particular criminal statutes. The bill of impeachment defined, in Congress’s words, what qualified as impeachable offenses (or, in the Constitution’s words, “high crimes and misdemeanors"). In that case, the allegations were that the President gave “false and misleading testimony to [a] grand jury” about “the nature and details of his relationship with a subordinate”; “prior perjurious, false and misleading testimony he gave in a Federal civil rights action”; “prior false and misleading statement she allowed his attorney to make”; and “corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence.” The second article of impeachment charged Clinton with a set of specific allegations that “undermined the integrity of [the Presidential] office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice.” Then Senator Jeff Sessions voted to convict and impeach President Clinton on both counts.

In my view, what is needed is either a serious congressional investigation (see #2 below) or a congressionally created independent commission. For more on this point, David Frum’s article in the Atlantic argued that a special counsel was not the solution (the article was before the news of the intelligence sharing with Russia, or the news of the Comey memo).

(2)    The special counsel is one person. An investigation takes much more than that. The regulations provide that a special counsel shall be provided “all appropriate resources” and that the special counsel will, within 60 days of the appointment, create a proposed budget, which must be approved by the Attorney General (here presumably by Rosenstein rather than Sessions). (This is in section 600.8 of the relevant regulations.) Before much can be expected from the investigation (or anything can be expected any time soon), it will be important to know what the budget, personnel, and resources of the special counsel’s investigation will be. By way of an example, we know that the Senate “investigation” into Russia-related wrongdoing is a joke because as of April, there were zero full-time staffers devoted to the investigation, and the staffers that worked on the investigation part time (seven of them) had no meaningful investigative experience. After that news came out, the Senate Committee hired two staffers.

(3)    A special counsel can be fired by the Attorney General under section 600.7 of the relevant regulations (in this case, the special counsel could presumably be fired by Rosenstein rather than Sessions). That means the special counsel can be removed from his position by a person who the President has the authority to remove at the President’s will. However, the Attorney General (here, Rosenstein) can only fire the special counsel for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Will President Trump fire Rosenstein if Rosenstein does not remove the special counsel, or take steps to limit the counsel’s authority? It is hard to imagine how that could be a rational response, but I guess we will see.

As always, there is an old Trump tweet for the occasion. On October 9, Trump tweeted that “If I win-I am going to instruct my AG to get a special prosecutor to look into your situation bc there’s never been anything like your lies.”

 

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