I finally got around to digging up Robert Mueller’s appointment letter. I didn’t think it would be that interesting. I was wrong.
I’ve seen a lot of commentary about what Mueller ‘can and cannot’ do, or what authority the AG would have over Mueller’s investigation. There are three factors at play here. There is the special counsel regulation at DOJ, which define the minimum powers of a special counsel. Then there is the authority of the AG to approve expanded authority of the special counsel. The third is the appointment letter, which would lay out any ‘ground rules’, either tightly controlling the matter to be investigated and limiting the special counsel’s jurisdiction, or it would lay out any ‘up front approvals’ for the special counsel.
Let’s step through the major paragraphs and see what we learn:
Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice
Ok. Starts out banal enough.
The Special Counsel 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
Interesting. Mueller’s investigation isn’t really Mueller’s investigation. He is taking over executive control and authority of an ongoing investigation that predates his appointment. We kind of knew that already. However, we should keep in mind that any estimates of the size of the investigation can not be gleaned from Mueller’s financial reports. His own office will only report executive oversight costs. It won’t cover any funds authorized by internal FBI/DOJ/DHS/IC sources for line agents.
(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).
(i) and (ii) are pretty banal. However, (iii) is interesting because it is also mentioned later in the document. Reading the relevant section of the CFR:
It looks like Rosenstein is granting Mueller discretion as to whether to claim jurisdiction over a particular matter or not. It almost reads like a ‘blanket approval’. That makes sense, from the standpoint that Mueller is taking over an existing investigation, and inheriting the FBI’s own machinery for handing off cases and criminal investigations as new crimes come to light. Taking the time to consult with Rosenstein when the ‘right answer’ is well established (by existing FBI policy) is largely moot.
If we’re going to add in a little wishful thinking, such a ‘blanket approval’ move means that Mueller can concentrate and compartmentalize knowledge of the investigation. It would be harder for a new AG to steer investigation elements to Trump cronies if they don’t have details on what investigative steps have been taken.
OK, back to the appointment letter:
(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.
Well so much for the AG having to sign off on any prosecutions. This line appears redundant with the special counsel regulation:
§ 600.6 Powers and authority.
Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney. Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.
Generally such authorization and empowerment letters are not written with a bunch of redundancy. Why would Rosenstein have added a redundant statement? It’s not actually redundant. The words “within the scope of his or her jurisdiction” are missing from the letter. It reads like Rosenstein anticipated maneuvers like Manafort’s lawsuit; and granted Mueller unlimited proprietorial power. It certainly eliminates any discussion of whether or not Mueller could be removed on grounds of exceeding his proprietorial jurisdiction.
The special counsel regulations read with the pattern “investigate the matter at hand, prosecute the matter at hand or prosecute obstruction. Consult with the AG on how to handle other stuff”. The letter reads with the pattern “Continue with this investigation. The matter at hand is Russian collusion. Prosecute anything you find”.
Looks like Rosenstein set up Mueller as a pretty well empowered special counsel. With an appointment letter as arguably broad as that (and with 8 months of endorsement by Rosenstein on decisions), it won’t be easy for a future AG to neuter the investigation, or fire him for exceeding his authority. Looks like the only two options are to let the process play out or engage in a naked hatchet job.