The Rosenstein Memo

By Andrew C. McCarthy

April 4, 2018 6:30 AM

Deputy U.S. Attorney General Rod Rosenstein on Capitol Hill, June 13, 2017. (Jonathan Ernst/Reuters) We now have a redacted version of the deputy attorney general’s guidance to the special counsel.

Eight months ago, in August 2017, Deputy Attorney General Rod Rosenstein secretly gave Special Counsel Robert Mueller specific guidance as to the crimes Mueller is authorized to investigate. The guidance came about ten weeks after Mueller’s May 17 appointment. This guidance purports to describe the grounds for criminal investigations, marking the limits of the special counsel’s jurisdiction.
As readers may recall, these columns have been critical of the deputy attorney general for failing to provide such guidance. Instead, I’ve contended, Rosenstein assigned Mueller to conduct a counterintelligence investigation, which is not a sound basis for appointing a special counsel; the regulations require grounds for a criminal investigation.
So . . . was I wrong? No, I was right.

We learned Tuesday morning, based on a Monday-night court filing by Mueller, that Rosenstein’s amplification of Mueller’s jurisdiction was set forth in a classified memorandum dated August 2, 2017. That memo was filed just one week after a July 26 column in which I comprehensively laid out the deficiencies in Rosenstein’s appointment order and suggested that he could cure the problem by “specify[ing] exactly what potential crimes the special counsel is authorized to investigate.” To be clear, I do not claim to be the only commentator who has criticized the deficiencies of Rosenstein’s appointment order, though I doubt others have done so as consistently and pointedly, including with proposals for bringing it into compliance. (See, e.g., “Mend, Don’t End, Mueller’s Investigation.”)

The Deficiencies of Rosenstein’s Order Appointing Mueller
To recap, Rosenstein appointed Mueller on May 17, 2017, days after President Trump’s botched firing of FBI director James Comey — a debacle in which the administration’s conflicting explanations for the director’s removal, coupled with the president’s reprehensible comments about Comey for the consumption of Russian diplomats he hosted at the White House, intensified Democratic calls for a special counsel.
From the outset, I protested that Rosenstein’s order appointing Mueller violated governing special-counsel regulations. They make the trigger for such an appointment the existence of a “criminal investigation of a person or matter,” which some conflict of interest prevents the Justice Department from conducting in the normal course — requiring that an attorney from outside the U.S. government be assigned to conduct the criminal investigation (see 28 CFR Sections 600.1 and 600.3). To the contrary, Rosenstein’s order disclosed no basis for a criminal investigation and indicated no crimes that had allegedly been committed.
Instead, the deputy attorney general assigned Mueller to conduct a counterintelligence investigation. To wit, Rosenstein defined the probe as “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” In that testimony, Comey had quite explicitly confirmed a counterintelligence probe: “I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election” (emphasis added).

Significantly, there is a natural symmetry between the grounds for appointing a special counsel and those for requiring the recusal of top Justice Department officials. It is the latter that gives rise to the former. I had thus argued that Attorney General Jeff Sessions’s recusal from the Russia investigation was premature and too sweeping. As the attorney general acknowledged, the recusal matter was controlled by 28 CFR Section 45.2. But that regulation similarly states that disqualification is necessary only if there is a criminal investigation or prosecution as to which a prosecutor has a conflict of interest.
Since the Russia investigation was a counterintelligence investigation, I contended that Sessions could have declined to recuse. There was a caveat: In the event the Russia counterintelligence probe turned up evidence of crimes that would warrant criminal investigations, Sessions — because of his prominent role in the Trump campaign — would likely have to recuse himself from those investigations, on a case-by-case basis (e.g., if criminal charges were brought against Michael Flynn, as ultimately happened).
Sessions’s recusal in early March 2017 has been, ever since, the subject of heated overreaction by President Trump. While the president has a point because the recusal was too broad, he acts as if there were no basis for it at all. In point of fact, if the counterintelligence investigation were to yield grounds for criminal investigations that arose out of the campaign, including any implicating Trump himself, Sessions would have been bound by ethics rules to disqualify himself from those matters.

Trump’s apparent belief that the attorney general is there to shield the president from investigation is dangerously wrong.

The question, of course, is whether such grounds exist. Trump’s irritation that Sessions’s recusal could be taken as an implicit concession that there are such grounds is understandable. But Trump’s apparent belief that the attorney general is there to shield the president from investigation is dangerously wrong; and the presidential wrath that bursts from this belief is, to put it mildly, unbecoming — the president’s disturbing penchant to act like a guilty man even if he is probably not one.
The tension between the president and the attorney general bubbled over (as it occasionally has over the past year) on July 19, 2017. That is when the New York Times published its interview with Trump, in which he said that he would not have appointed Sessions as AG had he known that Sessions would have recused himself from overseeing the Russia investigation. There followed days of commentary over this eruption — including my own contribution, a column arguing that Trump had himself, not Sessions, to blame for the existence of a no-boundaries special counsel investigation.

Proposing That Rosenstein Specify Mueller’s Jurisdiction
The Times’ interview of Trump and its aftermath brought renewed (and, to my mind, welcome) attention to Rosenstein’s failure to specify grounds for a criminal investigation that would justify the special-counsel appointment. In my aforementioned July 26 column, after (yet again) rehearsing why Rosenstein’s appointment order failed to comply with governing regulations, I closed with some observations and suggestions:

Not only is Mueller invited to conduct a fishing expedition, with no specified crimes limiting his investigative jurisdiction, but counterintelligence probes are classified. Consequently, Mueller’s investigation proceeds in total secrecy: no boundaries on what may be examined, and no disclosures about what the special counsel is examining and why.
Instead of badgering his attorney general on Twitter, perhaps the president could, you know, act like a president and instruct his Justice Department to comply with federal regulations.
Sessions could be directed to consider whether his recusal complies with the regulation that limits disqualification to criminal investigations as to which there is a conflict. To the extent it does not, he should amend the recusal to conform to the regulation.
Rosenstein could be directed to consider whether his appointment of a special counsel complies with the regulations that limit such appointments to criminal investigations or prosecutions as to which the Justice Department is conflicted. He could further be directed to specify exactly what potential crimes the special counsel is authorized to investigate. [Emphasis added.]
Finally, after Rosenstein specifies the crimes, Mueller could be invited to seek an expansion of his jurisdiction if he can demonstrate that he has legitimately found evidence of other crimes.
If this were done, if the regulations were followed, all of us, including the president, would know what crimes the president is suspected of committing . . . if there are any.

We now know that on August 2, Rosenstein issued a classified memorandum, undertaking to correct the appointment’s order’s deficiencies by describing various grounds for a criminal investigation.

Manafort’s Motion to Dismiss Mueller’s Charges
It is worth considering how we have come to know about the memo.
About three weeks ago, Paul Manafort filed a motion to dismiss the money-laundering indictment Mueller filed against him in the District of Columbia (and he has since filed a motion to dismiss the bank- and tax-fraud indictment Mueller filed against him in the Eastern District of Virginia). The motion to dismiss, which was foreshadowed by a civil lawsuit Manafort filed in January, claims that the special counsel’s charges against him, based on Manafort’s dealings with a Kremlin-backed Ukrainian political party, exceed the jurisdiction outlined in Rosenstein’s appointment order, which focuses on Russia’s interference in the 2016 election.

It is worth considering how we have come to know about the memo.

As I argued at the time, Manafort’s claim is a serious one (although his tactic of raising it in a separate civil action, rather than in a motion to dismiss before the judge presiding over the criminal case, was improper). Nevertheless, I observed that Rosenstein could easily cure the deficiency of his appointment order by granting Mueller additional jurisdiction to investigate any crimes arising out of Manafort’s involvement with Ukraine.
It turns out that this is exactly what Rosenstein did (among other things) in his August 2 memo.
Why Did Rosenstein Write the August 2 Memo?
In the memo, the deputy attorney general claims that his original order appointing Mueller did not mention the criminal investigations Mueller was authorized to conduct because Rosenstein wanted to make the public aware that Mueller was being appointed “without confirming specific investigations involving specific individuals.”
Count me a skeptic. If that is what Rosenstein intended, he could have issued the classified memorandum defining Mueller’s jurisdiction at the same time he issued the appointment order — i.e., on May 17. After all, the special counsel’s jurisdiction to conduct criminal investigations is supposed to be established at the time of the special counsel’s appointment, not ten weeks later.
I believe Rosenstein amplified Mueller’s jurisdiction because he wisely concluded that the objections to his previous failure to do so had merit. Moreover, by August 2017, Rosenstein had to have been anticipating Mueller’s indictment of Manafort (along with Richard Gates), which occurred less than three months later. It would have been clear to Rosenstein and Mueller that they could face headwinds in the Manafort prosecution unless Rosenstein articulated a clearer jurisdictional basis for it.
The fact that Rosenstein’s August 2 memo is classified underscores the fact that the Russia probe is essentially a counterintelligence investigation. Such investigations are classified. In criminal investigations, sensitive information is tightly held, but it is almost never classified.
Heavily Redacted ‘Allegations’ of ‘Collusion’
For now, there are several notable things about Rosenstein’s memo amplifying Mueller’s jurisdiction.

First, most of it is redacted. The memo is a little over two pages long. After some opening background, Rosenstein instructs Mueller, “The following allegations were within the scope of the Investigation at the time of your appointment and are within the scope of the [May 16 appointment] Order.” But after that, everything is blacked out except for two “allegations” regarding Paul Manafort. The redacted portion is four times bigger than the unredacted Manafort portion, so Rosenstein has obviously authorized Mueller to investigate several “allegations” about which we are still in the dark.
Do these include “allegations” that expressly name President Trump? We do not know.
Second, I quote the memo’s use of allegation advisedly. The special-counsel regulations are not satisfied by mere allegations; they require that there be factual grounds warranting a “criminal investigation of a person or matter.” Now, the regulation governing a special counsel’s jurisdiction (Section 600.4) is unclear on how much must be said about the grounds for the investigation — the acting attorney general must give the special counsel “a specific factual statement of the matter to be investigated.” I believe the term “specific factual statement” implies that more than a mere, conclusory allegation is required; but others will counter the regulation is satisfied by what Rosenstein has provided: general outlines of potential crimes, in the form of allegations. The latter view, if correct, means the public is apt to be in the dark about why there is a special counsel.

Do these include ‘allegations’ that expressly name President Trump? We do not know.

Third, the two unredacted allegations against Manafort bear examination. One is easy enough to grasp: the “allegation” that Manafort “committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Victor Yanukovich.” This is reflected by the two indictments Mueller has filed against Manafort (and Gates, who has since entered a guilty plea to lesser charges and is reportedly cooperating).
It is the other allegation (which is the first one that Rosenstein lists against Manafort) that is intriguing: The “allegation” that Manafort

committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law.

As we’ve frequently observed, collusion is not a crime in and of itself — even “colluding with Russian government officials.” Concerted activity must rise to the level of conspiracy to commit a violation of federal criminal law (or some similar form of joint criminal activity, such as aiding and abetting another person’s or entity’s commission of a federal crime). Rosenstein may invoke the words “crime or crimes” and the phrase “in violation of United States law,” but there is no factual statement describing actions that amount to concrete crimes.
In this sense, the August 2 memo’s amplification of Mueller’s jurisdiction is no more edifying than the May 17 appointment order’s original grant of jurisdiction, which authorized Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump.” It is not a crime to have “links” to, or to “coordinate” with, Russia. To be sure, it would be a crime to, say, coordinate with Russia in the hacking of email accounts. But Rosenstein does not allege anything like that. So even with the amplification, we still do not know what crimes Rosenstein suspects, such that “collusion” should have prompted the appointment of a special counsel.

Is the Steele Dossier Involved?
Finally, what is the source of an allegation that Manafort colluded with Russian officials “with respect to the Russian government’s efforts to interfere in the 2016 election”?
Here, we must humbly concede, as these columns have many times, that we do not know everything the FBI knows. The government is conducting an investigation, and we are informed only about what officials choose to reveal. We know the government has been investigating Manafort for a long time, and we can safely assume that the FBI has been digging deeply into his Russian ties for any connections to the 2016 election. Withal, we can confidently say two things: (1) Despite facing many counts of serious criminal misconduct, Manafort has never been charged with any crime connected to Russia’s meddling in the 2016 election, and (2) the most notorious information to allege explicitly that Manafort conspired in Russia’s election meddling is the Steele dossier — the unverified reports compiled by former British spy Christopher Steele, whose political opposition research project was sponsored by the Hillary Clinton campaign.
Of course, we know about the government’s use of the Steele dossier in connection with the investigation of former Trump campaign adviser Carter Page. It appears that uncorroborated and highly suspect dossier allegations were used to apply for a FISA warrant against Page because the government would have lacked probable cause without them. The FISA court was not informed that Clinton campaign was behind the dossier.
By contrast, we do not know to what extent, if any, the dossier was exploited in the investigation of Manafort. CNN has reported that Manafort was also the target of surveillance warrants, but I do not believe that reporting has been confirmed by the Justice Department, any congressional committee, or any other government source. Assuming that Manafort was surveilled, we might also have assumed that his years of shady activities with Kremlin-backed Ukrainians would have given the government the probable-cause needed to justify any FISA warrants — i.e., it would have been unnecessary for the government to resort to Steele’s suspect claims, as it did with Page. Based on anonymous sources, CNN’s report suggests that Manafort was surveilled around the same time that Page was (late 2016 into 2017), but that this monitoring was prompted by “communications between Manafort and suspected Russian operatives, and among the Russians themselves.”

 

Thus, the questions arise:

• Does the Steele dossier form any part of the government’s basis for Rosenstein’s allegation that Manafort was complicit in Russia’s interference in the election?
• If not, what is the factual basis of that allegation, which to date has resulted in no formal charges against Manafort?
• Do the extensive redacted portions of Rosenstein’s memo contain allegations that other named Trump campaign officials were complicit in Russia’s interference in the 2016 election?
• Are those allegations, if any, based in any way on the Steele dossier?
• If not, what is the factual basis for alleging that the named Trump campaign officials were complicit in Russia’s interference in the 2016 election?
• Is President Trump among the individuals named in Rosenstein’s allegations?

Suffice it to say, we remain uninformed regarding the government’s basis for alleging that ‘collusion’ with Russia resulted in potential crimes warranting investigation.

Deputy Attorney General Rosenstein is to be commended for attempting to rectify the deficiencies in his original special-counsel appointment order by issuing a memo that amplifies Special Counsel Robert Mueller’s jurisdiction to conduct criminal investigations. Rosenstein’s explanation for the timing of the memo (ten weeks after the appointment order) is not very convincing, and the extensively redacted form in which it has been released means the memo raises more questions than it answers. Suffice it to say, we remain uninformed regarding the government’s basis for alleging that “collusion” with Russia resulted in potential crimes warranting investigation; and we still do not know if the Justice Department alleges that President Trump is a criminal suspect — and, if so, in what crime.