Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa holds the gavel close while listening to testimony by Puerto Rico Gov. Alejandro Javier Garcia Padilla on Puerto Rico’s fiscal problems, Tuesday, Dec. 1, 2015, on Capitol Hill in Washington. Puerto Rico and its debt crisis takes center stage in Congress as its governor testifies before a Senate panel about the U.S. commonwealth’s financial woes and the demands of creditors.(AP Photo/Pablo Martinez Monsivais)
Friday afternoon, Senate Judiciary Committee Chairman sent a letter to Deputy Attorney General Rod Rosenstein and FBI Director asking, over the course of seven pages if Rod Rosenstein actually knows his ass from a hot rock. The tenor of the letter expresses grave doubt that such knowledge exists.
No more Mister Nice Guy
The judge [T. S. Ellis in the Manafort criminal case] asked for, and the Special Counsel provided, an unredacted copy of the August Memorandum. This Committee likewise should be permitted to review the true nature and scope of the Special Counsel’s investigation. Like the Judiciary, Congress is a separate branch of government with its own constitutional duties that often require access to Executive Branch information. In this case the interests relate to both legislative and oversight responsibilities.
This seems to be a signal to Rosenstein that Grassley is prepared to act forcefully to get full cooperation from the Justice Department. Grassley also makes it clear that Justice’s cooperation has a direct impact on whether the bill to codify the special counsel regulations into law moves or not.
However, that does not mean that it is immune from oversight or that information about the scope of its authority under existing Department regulations should be withheld from Congress. Further, as we consider legislative proposals based largely on the Department’s current rules, it is vital that Congress has a clear understanding of how the Department is interpreting them.
What, exactly, are you doing?
As Judge Ellis stated in the hearing earlier this month, Americans do not support anyone in this country wielding unfettered power. That is doubly true when it is wielded in secret, beyond the purview of any oversight authority. In the Starr investigation, the scope and changes made to it were transparent. In this case, the public, Congress, and the courts all thought the scope was one thing, and have now been informed it is something else. For that reason and others, it is unclear precisely how, or whether, the Department is following its own regulations, what the actual bounds of Mr. Mueller’s authority are, and how those bounds have been established.
Grassley goes on to lay out specific examples where Rosenstein has seemingly mislead Congress and where he seems to violate DOJ regulations.
Second, the Appointment Order omits sections 600.1-600.3 of the Department regulations. The omitted sections are: (1) grounds for appointing a Special Counsel, (2) alternatives available to the Attorney General, and (3) qualifications of the Special Counsel, including the requirement that the Assistant Attorney General for Administration ensure a detailed review of conflicts of interest issues. More specifically, section 600.1 states the Attorney General “will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.” The omitted regulations do not authorize counterintelligence investigations. However, the Appointment Order does not otherwise specify whether, to what extent, or on what basis Mr. Mueller has been granted counterintelligence authority.
These omissions, and the Department’s decision to withhold a precise description of the scope of the special counsel investigation, obscures how the Department is spending very significant amounts of taxpayer dollars and leaves murky the actual jurisdictional limits on Mr. Mueller’s authority as well as how those limits are determined. Most troubling, the Department’s close hold of this information arises amidst multiple instances of the Department’s resistance to transparency on the purported grounds of national security, even when the information sought to be restricted did not pose any legitimate security risk, or was already public.
And then there are a series of questions about deviations from DOJ regulations.
The Appointment Order does not cite to 28 C.F.R. § 600.1 through § 600.3. However, section 600.1 is the section that describes the grounds necessary to appoint a special counsel. It requires (1) a criminal predicate, and (2) that investigation or prosecution by a U.S. Attorney’s office or litigating unit of DOJ would present a conflict of interest or other extraordinary circumstance…
…Again, under section 600.1 the “matter” is that which the Attorney General or Acting Attorney General determines “warrant[s]” a “criminal investigation.” Is there a “specific factual statement of the matter” that warrants a criminal investigation described in the May 17 Order? In the August Memorandum? What is it?
…The regulations cited in the Appointment Order authorize the Acting Attorney General to grant to a Special Counsel the powers of a U.S. Attorney. To what extent have you considered whether that includes the authority to initiate, supervise, or participate in counterintelligence investigations?
During an all-Senators briefing on May 18, 2017, you were asked by Senator Collins and Judiciary Committee staff whether you had delegated the Attorney General’s FISA approval authority to Special Counsel Mueller. Have you delegated FISA approval authority to the Special Counsel? If so, on what date, and was the delegation done in writing? If it was in writing, please provide a copy to the Committee.
What jurisdictional limits apply to Special Counsel Mueller’s investigation?
How were those jurisdictional limits determined?
Have the jurisdictional limits of the Special Counsel’s investigation changed or expanded? If so, on what date(s) and what was the scope and basis for the expansion?
If so, what process or procedure was followed to ensure compliance with 28 C.F.R. § 600.4(b)?
The thrust here is whether a special counsel was warranted in the absence of a criminal allegation (that is not a new critique, it is one that many here have made since the day of appointment) and if there is no criminal allegation, does the special counsel have the authority to carry out a counterintelligence investigation (that’s a rhetorical question, I believe).
Here, again, is a link to the letter.
This kind of attention from Grassley, a guy who is not known to get wound up all that easily unless ethanol subsidies are in danger, as the DOJ IG report is on the verge of being released is not good news for Rosenstein or for Mueller.
I’m on Facebook. Drop by and join the fun there.