Posted on 05/07/2018 2:13:02 PM PDT by Meet the New Boss
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).
But this particular provision of the special counsel regulations (600.10) saying no one has the right to challenge it cannot be valid.
That is because the regulations provide that the DOJ can take a private citizen, someone off the street, and can explicitly vest that person with all the awesome power of a US Attorney to prosecute, convict and imprison people.
It would be different if a sitting US Attorney, already properly appointed and confirmed by the US Senate, were appointed special counsel. That is how it happened in the Valerie Plame special counsel -- James Comey as Deputy AG appointed his friend Patrick Fitzgerald, a sitting US Attorney to handle the special counsel matter.
But where the DOJ takes someone off the street and purports to give them prosecutorial power, without Senate confirmation or other compliance with the appointment process for a US Attorney, the power of that person to prosecute people for crimes in federal court rests entirely on the validity of his jurisdiction under the special counsel regulations.
If their position is that the special counsel is a US Attorney and any limitations on his jurisdiction are irrelevant as far as the defendant or the public is concerned, then that argument fails because this person as an unfettered US Attorney was never confirmed by the Senate as required by law.
So the express limitation on his jurisdiction is everything as far as his power to prosecute people for crimes. The defendant must be able to know his jurisdiction and to challenge it.
If the special counsel exceeds his jurisdiction, he has no power to prosecute. No differently than if someone came into court falsely claiming to be a US Attorney and tried to file indictments against people.
The Special Counsel must reveal the precise terms of his jurisdiction to the defendant and the court and the defendant must have the right to challenge it.
There is no longer law and order in America! Crime committed in not punished if you are a communists Democrat.
yes...which makes it interesting when and how the charges against Manafort will be dropped. Mueller knows he’ll lose if that case goes to trial because he doesn’t have jurisdiction since there is no scope or a crime to be investigated. Rosenstein effed up in his neverTrumper haste, and Trump will wait after the election to fire his sorry a$$ IMO!
This is all Liberal theatre. Dems make up their own rules and Reps are too scared to contest them. It is clear as daylight but we have to argue it on a blogpost. Where the hell is Sessions? I know the answer. He let Dems make up the rules on SC and now decides he doesn’t want to get involved. Lets make lists of the excuses. This will continue until Chelsea’s children are President! /s
Awesome article.
Purrrrrrfect!
Meuller and the rest of the Deep State never thought it would get this far. They were convinced that they would have either found something to nail him on or Trump would give up and quit before their underhanded tactics could be exposed. Now, they are over-extended and desperate because their jury-rigged prosecution is coming apart at the seams. One good swift kick — such as a dismissal with prejudice of the charges against Manafort — would totally gut and destroy Meuller’s investigation. It would give Trump all the ammo he needs to fire him.
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