Thursday, September 21, 2017
I was on Tucker Carlson's show Tuesday night and he asked me whether Bob Mueller was guilty of "mission creep on a grand scale" by investigating "financial dealings going back some years." Presumably this was a reference to reports that Mueller and crew are investigating Paul Manafort's and President Trump's past financial arrangements with Russian citizens and business entities. I responded that Mueller's charter was broad. Special Counsel appointment letters, and the federal regulations covering the Special Counsel, are typically very vague, squishy, and capacious. This is not necessarily inconsistent with mission creep. It is to say that mission creep has to creep pretty far to run afoul of most Special Counsel charters. Attached is Rod Rosenstein Order Appointing Robert S. Mueller III as Special Counsel. Note that Rosenstein, in his capacity as Acting Attorney General (because Jeff Sessions had recused himself), made the appointment in order to "ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election." Mueller is authorized to "conduct the investigation confirmed by then-FBI Director James B. 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)."
Note that the overall purpose of the Mueller appointment was to ensure a full and thorough investigation of Russian interference in the 2016 election. How can an investigation be full and thorough if Mueller is not entitled to follow every potential lead, including past business dealings? Note also that Mueller is authorized to take over the pre-existing FBI investigation confirmed by Comey. Thus, anything and everything already being looked at by Comey and his people is fair game for Mueller.
Then come the three non-exclusive categories of inquiry. First, any links or any coordination between the Russian government and individuals associated with Trump's campaign. With respect to the Russians, this would include individuals acting at Moscow's behest. Mueller would need to investigate who was acting at Moscow's behest. With respect to Trump's campaign this would include people informally associated with the campaign, paid or unpaid, including family members.
Second, any matters that arose or may arise directly from the investigation. Hypothetical example? The FBI questions a former Trump associate from Russia who reveals that Trump violated the Foreign Corrupt Practices Act four years ago in his dealings with Brazil. It's covered.
Third, any other matters within the scope of 28 CFR§ 600.4(a), which reads in part as follows: "The jurisdiction of a Special Counsel shall also include 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; and to conduct appeals arising out of the matter being investigated and/or prosecuted."
So you see, where Special Counsel Mueller, and virtually all Special Counsel are concerned, there may be mission creep, but there is no such thing as unauthorized mission creep. It may not be right. It may not be fair. But it's the law.
And one other thing. The media's focus on Mueller's alleged investigation of obstruction of justice in connection with Comey's firing misses the mark in my view. Absent something additional, the firing of Comey, even if done with the specific intent to shut down the Russia investigation, is alone insufficient to support obstruction of justice charges. But President Trump's many reckless statements and warnings, prior to Ty Cobb's arrival on the scene, may potentially be relevant on the issue of knowledge or intent. For example, if something shady is found in connection with past family dealings in Russia, President Trump's warning to Mueller not to go into that area could easily be admissible in evidence.
Saturday, September 16, 2017
According to Reuters, Deputy Attorney General Rod Rosenstein said on Thursday that there may be changes to the Yates Memo "in the near future." As discussed at length on this blog (see here, here, here, and here; see also here for an article on the Principles of Prosecution and the Yates Memo), the Yates Memo was released by the DOJ in 2015 in response to criticism that the government had failed to prosecute individuals, particularly on Wall Street, related to the financial crisis of the late 2000s. The Yates Memo responded by focussing federal prosecutors on targeting individuals and requiring that corporations provide significant information on employee conduct to receive credit for cooperating with the government. The Yates Memo states, "[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct."
According to reports, Rosenstein said, "It is under review, and I anticipate that there may be some changes to the policy on corporate prosecutions." It is unclear how far the review extends or whether possible changes extend beyond the Yates Memo and include revisions to the larger Principles of Federal Prosecution of Business Organizations contained in the U.S.A.M. Whatever changes are made, it is unlikely that the focus on individuals will diminish. Attorney General Sessions has publicly commented on his commitment to holding individuals accountable for corporate misconduct. We will have to wait, therefore, to see whether significant changes or mere reiterations of current policy priorities are on the horizon.