Paul Manafort‘s legal team brought a motion to dismiss on Tuesday, noting that Rosenstein could not appoint Mueller to any investigation outside the scope of the 2016 campaign since Sessions did not recuse himself for anything outside the campaign. I agree with this take on Mueller’s authority. If we follow that argument that would mean Sessions himself has exclusive authority to appoint a special counsel for non-collusion charges, and Sessions has taken no such action. Sessions himself should make that clear to Mueller, rather than await court resolution. Doing so would remove three of the four areas of inquiry from Mueller’s requested interview with President Trump.
Sessions formally notifying Mueller that he does not have authority to act outside of campaign-related cases and cases related to obstruction of Mueller’s investigation would be doing what the Constitution compels: enforcing the Appointments Clause of the Constitution. Additionally, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases would be exercising Sessions’ court-recognized Constitutional obligation to “direct and supervise litigation” conducted by the Department of Justice. Furthermore, Sessions notifying Mueller that he does not have authority to act outside of campaign-related cases protects against the inappropriate use of the federal grand jury that defendant Manafort now rightly complains about.
Sessions limiting Mueller to the 2016 campaign would also be restoring confidence in democratic institutions, and restore public faith that democratically elected officials.
One thing to remember about Sessions’ recusal: Sessions only recused himself from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” This recusal letter limits the scope of Sessions’ recusal to the 2016 campaigns; it does not authorize Sessions’ recusal for anything beyond that. Constitutionally, Sessions has a “duty to direct and supervise litigation” conducted by the Department of Justice. Ethically, professionally, and legally, Sessions cannot ignore his supervisory obligations for cases that are not related to the “campaigns for President.”
Second, the Constitution’s Appointment Clause requires the democratic process control the appointment of all but “inferior” officers. This means there can be no principal executive branch officer except those the President personally appoints and the Senate advises and consents to. There is probably no greater domestic power of the executive branch than the power to access a grand jury to indict someone, the power to access a grand jury to subpoena someone’s testimony and records, the power to access the tax records of any individual in the country, the power to request warrants to spy on someone’s activity or search it and seize it, or the power to simply threaten any of the above to an individual American. That is why that power must be limited to principal, democratically-appointed officers. The special counsel, when not appointed by the President, cannot act legally except as an “inferior” officer, strictly limited to the jurisdictional subject matter limits of his appointment and supervisory power of those above him that have been directly, democratically appointed by democratically elected officials. As a federal district court held: “the special counsel cannot act outside the bounds of either his limited jurisdiction or without regard for Department of Justice policies and regulations. As such, the Special Counsel does not wield unlimited authority.” Indeed, a special counsel’s “authority is therefore confined to the narrow objective of accomplishing the specific mandate he was given.”
Third, Sessions limiting Mueller would enforce the limits intended on Rosenstein’s letter authorization. Contrary to anti-Trump critics, Mueller’s mandate was not “get Trump,” “indict anybody who ever worked for Trump.” Mueller’s authority is limited to “links between the Russian government and individuals associated with the campaign of President Donald Trump.” Any subject matter that does not concern “the campaign,” is a subject matter that Sessions Constitutionally must directly supervise Mueller. This includes Sessions power to notify Mueller and formally revoke Mueller’s authority at any time in cases that do not concern the campaign itself. Sessions can remove Mueller’s authority to request search warrants, subpoena grand jury testimony, subpoena grand jury records, target individuals, or issue indictments unless the subject matter is constricted to the campaign itself. Sessions can return power over the existing indictments to regular DOJ prosecutors, as both the Constitution and the statutes compel. Sessions can dismiss existing indictments as an excess of authority of Mueller’s team (a team already infamous for acting outside their authority in the past, whether it be ethical abuses or over-broad, unconstitutional interpretations of federal criminal law).
Fourth, Sessions taking formal notice of his authority would remedy what some saw as an over broad authorization by Rosenstein. One argument for Mueller investigating 2005 tax crimes and 2010 bank fraud crimes and 2013 foreign agent crimes was that Rosenstein authorized Mueller to investigate all crimes that “directly arise” from the investigation. As some legal critics noted, there were always two problems with this interpretation of Rosenstein’s authorization: first, if it could be interpreted so broadly, it would make Mueller a de facto Attorney General of the United States, which the Appointments Clause does not permit, rendering such an authorization in violation; second, if it could be interpreted as broadly as Mueller has done so, then it failed to conform to the statutes and regulations governing special counsel authorizations. Regardless, Sessions retaking his authority formally would render the issue moot. Why? Because Rosenstein himself did not have the authority to create a special counsel for anything beyond the areas Sessions recused himself.
In sum, Sessions notifying Mueller he does not have authority to act on non-campaign related investigations would restore Mueller’s special counsel’s office to its intended Constitutional constrictions, remove the Beria-style investigative techniques witnessed over the past year, and restore public faith that our Constitutional democracy is still a Constitutional democracy. It would also prove Sessions is more than as Trump calls him — Mr. Magoo.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.
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