What is the basis of Robert Mueller’s appointment as Special Counsel? The regulations provide that the appointment of Special Counsel rests in part on the determination that criminal investigation of a person or matter is warranted (28 CFR § 600.1). The jurisdiction of the Special Counsel is established by the Attorney General or his surrogate and the Special Counsel is to be provided with a specific factual statement of the criminal matter to be investigated (28 CFR § 600.4). (The regulations further provide, by the way, that they are not enforceable by third parties.)
Acting Attorney General Rosenstein purported to comply with these regulations when he appointed Mueller in the May17, 2017 order/memo specifying the counterintelligence investigation opened under the Obama administration (not a criminal investigation, but never mind for the moment). Rosenstein purported to supplement it with a more specific description of Mueller’s “authority” as Special Counsel in the redacted scope memo of August 2, 2017.
At the hearing before Judge Ellis this past Friday, the Special Counsel attorney waved off these documents. In a sort of Emily Litella moment, he said “never mind.” According to Michael Dreeben, neither of these documents set forth the scope of Mueller’s jurisdiction. Rather, “the specific factual statement, as Attorney General Rosenstein described in his Congressional testimony, was conveyed to the special counsel upon his appointment in ongoing discussions that defined the parameters of the investigation that he wanted the special counsel to conduct.”
Well, what are the parameters? We don’t know. Is this the way it’s supposed to work? Like double secret probation?
Former Attorney General (and former federal judge) Michael Mukasey doesn’t seem to think so. Interviewed by Maria Bartiromo yesterday on FOX News, he carefully parsed the requirements attendant to the appointment of Special Counsel. He commented that Judge Ellis would be well within his rights to tell Dreeben to return with the applicable scope memo or with his toothbrush (video below).