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.