Jurisprudence

Only Norms Could Stop Him

How the acting attorney general could kill the Russia investigation without firing Mueller.

Acting Attorney General Matthew Whitaker.
Acting Attorney General Matthew Whitaker.
Chip Somodevilla/Getty Images

The acting attorney general, Matthew Whitaker, is in a position to seriously undermine the Russia investigation. He could potentially take several steps behind closed doors without the public being able to know in a timely manner. Other steps would be immediately visible. In the final analysis, the principal constraints on the acting attorney general if he is considering ways to undercut the investigation are the degree to which he is concerned about the personal repercussions of violating the most fundamental norms of his profession, as well as the longer-term damage to the institutions of justice and any political blowback from Congress or the public.

Some individuals may risk those consequences, and even delight in thumbing a nose at Congress on the belief that they serve a more noble cause or in the firm knowledge that, as a legal matter, they can get away with it. It is useful to think about the architects of the torture memos, and their contemptuous attitudes when they were “hauled” before Congress.

What the acting attorney general could not count on is any general acceptance that broad decisions to kill the investigation were taken in the interests of justice or that more piecemeal adverse actions against Robert Mueller were taken in good faith application of the existing regulations. That’s because Mueller appears to have operated in a very careful manner in carrying out the investigation, and overruling his actions would very likely demonstrate the acting attorney general is not faithfully applying internal Department of Justice rules.

In the event the acting attorney general embarks on a course of interfering with Mueller’s probe, there seem to be two wild-card remedies: 1) impeachment and congressional removal of the acting attorney general (which would require a supermajority of the Senate) and 2) criminal indictment of the acting attorney general for obstruction of justice. Nobody should hold their breath for either of those sanctions, even if the case merited them. However, short of these unlikely scenarios, Congress as a body and individual members of Congress have the power to bring pressure to bear on both the president and DOJ to insist that Mueller be left alone to do his work.

So what exactly could an acting attorney general do to kill or slowly deprive the Russia investigation of oxygen?

As a threshold matter, it is important to understand that many discussions of what the acting attorney general can do operate on the assumption that the basic legal and regulatory framework upon which Deputy Attorney General Rod Rosenstein has been conducting business would remain in place. In particular, commentators point to the special counsel regulations and how they define the conditions under which Mueller can be fired, the timing and basis for Mueller to report to the attorney general, the conditions under which the attorney general can countermand a decision of the special counsel, and so forth. But the attorney general retains the power to do away with that underlying framework.

First, the acting attorney general can revoke the regulations themselves without advance public notice. As a federal court explained in an August 2018 decision, “the Acting Attorney General retains the power to rescind or revise the Special Counsel regulations at will, and any purported limits on the power to remove or countermand persist only with the acquiescence of the Acting Attorney General” (our emphasis added). The court also stated that the acting attorney general could revoke the regulations without going through a transparent rule-making process—such as public notice and comment or the 30-day delay rule—because the appointment of a special counsel, as a matter of agency management and personnel, fits an exception in which those requirements do not apply.

Second, the acting attorney general could potentially keep the special counsel regulations in place but revoke or amend their application to Mueller. The application of those regulations to Mueller are arguably at the discretion of the acting attorney general. In the order establishing Mueller’s position, then-acting Attorney General Rosenstein stated that these regulations would apply, but the new acting attorney general could revise the original order. As Marty Lederman has carefully explained:

I believe it would not be necessary for the Acting AG to rescind the regulations themselves, because technically Mueller was not appointed pursuant to those regulations: Rosenstein appointed him to continue a counterintelligence investigation, which goes beyond the regulations’ own grounds for appointment, and thus (I think) Mueller is subject to the regulations’ independence and removal protections only by virtue of paragraph (d) of Rosenstein’s appointment memorandum itself.

Third, an acting attorney general might purport to interpret the Rosenstein order to apply the special counsel regulations to Mueller’s duties but not to the duties and obligations of the attorney general. The order states: “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” According to this reading, the order does not state that the regulations are applicable to the attorney general. We believe this would be an implausible reading of the order, though. The sections of the code are designed to protect the independence of the special counsel and only have meaning in the way they describe the relationship between the special counsel and the attorney general. Stating that these sections are applicable to the special counsel is stating that they apply in full to this investigation. What’s more, one of the sections (600.9 on “Notification and reports by the Attorney General”) applies only to the attorney general’s duties and is included in the order. In short, if the acting attorney general no longer wanted the regulations to apply to his office, he would need to exercise one of the first two options: revoke the regulations themselves or revoke/amend Rosenstein’s order applying the regulations to special counsel Mueller’s investigation.

If Whitaker adheres to the special counsel regulations, how might he find ways to interfere with, constrain, or even block Mueller’s investigation? The regulations grant the special counsel “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” In turn, the Justice Manual, which sets forth Department of Justice policy, delegates broad authority to U.S. attorneys:

The United States Attorney, within his/her district, has plenary authority with regard to federal criminal matters. This authority is exercised under the supervision and direction of the Attorney General and his/her delegates.

The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.

The authority, discretionary power, and responsibilities of the United States Attorney with relation to criminal matters encompass without limitation by enumeration the following:

A. Investigating suspected or alleged offenses against the United States, see JM 9-2.010;

B. Causing investigations to be conducted by the appropriate federal law enforcement agencies, see JM 9-2.010;

C. Declining prosecution, see JM 9-2.020;

D. Authorizing prosecution, see JM 9-2.030;

E. Determining the manner of prosecuting and deciding trial related questions;

F. Recommending whether to appeal or not to appeal from an adverse ruling or decision, see JM 9-2.170;

G. Dismissing prosecutions, see JM 9-2.050; and

H. Handling civil matters related thereto which are under the supervision of the Criminal Division

Nonetheless, the regulations allow two ways for the acting attorney general to involve himself in a special counsel investigation such as Mueller’s. First, § 600.7 requires the special counsel to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” Pursuant to this requirement, it is conceivable that the acting attorney general could withhold his approval for any prosecutorial action that requires his express authorization. However, the Justice Manual identifies relatively few prosecutorial actions that require the attorney general’s approval. The decision to seek the death penalty is one. In Mueller’s investigations and prosecutions, there are no obvious anticipated steps that would require the express approval of the attorney general.

Second, § 600.7 of the special counsel regulations says that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” It is through this provision that the acting attorney general might seek to make the most mischief.

The acting attorney general could insist that Mueller keep him abreast of all investigative and prosecutorial steps in the ongoing probe and could simply decide that particular steps were “inappropriate or unwarranted under established Department practices” and block them. Such steps could include decisions to interview witnesses, subpoena documents or witnesses to the grand jury, seek search warrants, or pursue charges. In theory at least, the acting attorney general could review and stop any or every investigative or prosecutorial step that Mueller hoped to pursue. Department of Justice policies afford broad discretion to prosecutors, and the acting attorney general could claim that Mueller’s proposed actions represented an “inappropriate” exercise of discretion. For example, the Principles of Federal Prosecution, set out in the Justice Manual, specify that prosecutors should commence prosecutions where there is sufficient evidence of a federal crime unless “the prosecution would serve no substantial federal interest” (JM 9-27.220). Whitaker could simply assert that the Mueller investigation, or large swaths of it pertaining to Trump campaign associates, no longer served a substantial federal interest and stop all further activity within that part of the investigation. The acting attorney general’s decision would be formally unreviewable—no court, for instance, would have the power to assess the validity of his decision.

The acting attorney general could take such bold steps, but only through a transparently bad faith interpretation of the law. That’s because the special counsel regulations permit the attorney general to block actions of the special counsel only upon a finding that such actions are “inappropriate or unwarranted under established Departmental practices.” That is not a claim that the acting attorney general will easily make about any of Mueller’s proposed steps. Justice Department policy and practice is broad and permissive in terms of what it allows U.S. attorneys to do in pursuing investigations and criminal cases. While it seeks to guide the exercise of discretion by prosecutors, it does not generally limit with bright lines the lawful investigative and prosecutorial authorities of those prosecutors. The steps that Mueller has taken to date that have become public are all well within the heartland of actions that federal prosecutors take across U.S. attorneys’ offices every day and could under no circumstances be described as “inappropriate or unwarranted.” There is no reason to imagine that it will be otherwise going forward. And regarding the federal interest served by the investigation, Mueller and others could point to the extensive definition of federal interest provided in the Justice Manual and the ways that his investigation meets it.

Further, the regulations require that the attorney general report to the chairman and ranking minority member of the Senate and House Judiciary Committees any decisions to block an investigative or prosecutorial step by the special counsel. It is true that the attorney general need not provide this report until the end of the special counsel’s investigation (and it would be left to the acting attorney general to interpret what is meant by “conclusion of the Special Counsel’s investigation”). However, if the acting attorney general acts in such a way to effectively shut down the investigation, Mueller might bring his inquiry to a definitive close sooner rather than later, triggering the acting attorney general’s obligation to report to Congress about his decisions to override actions of the special counsel. That would not be a pretty moment, for any decision that the acting attorney general made that Mueller’s investigation was “inappropriate or unwarranted” would be exposed for what it was: an abusive and partisan effort to shut down the investigation.

Mueller’s decision to bring the investigation to a quick close is exactly what an unscrupulous acting attorney general may want. What’s more, the option of bringing the investigation to a close is a nuclear one, and Mueller may not be willing to take it in the face of even serious intrusions on the investigation.

The acting attorney general could take other steps to undermine the investigation. He could, perhaps by existing formal or informal rules, inform the White House of matters internal to the investigation. The Watergate special prosecutor had multiple meetings and conversations with the White House in which he revealed information he’d discovered, but for good reasons in his push-and-pull negotiations with President Nixon. It is hard to police when an acting attorney general might do the same—sharing vital internal information about the investigation—but for ill reasons. As Asha Rangappa wrote, “a less scrupulous DAG [than Rosenstein] could even leak Mueller’s plans to the White House or others.”

Another measure that an acting attorney general could pursue is to revise, to a greater or lesser degree, the more specific memorandum detailing different lines of Mueller’s investigation. Some parts of that previously secret memorandum were disclosed during the Paul Manafort trial, but other parts remain classified. The memorandum is an internal document issued from the desk of Rod Rosenstein, and the acting attorney general could therefore see fit to alter it behind closed doors.

With the incoming Congress, the American public would likely at some point be informed of these activities by the acting attorney general. Mueller, for example, could testify, and he would be an enormously powerful witness. But there is no reason for members of Congress to wait until then—that is, until it’s too late. It is important for members of Congress not only to talk about what they will demand of a new nominee for the office. They must also focus on the work of the acting attorney general in the meantime, spelling out the dire consequences for Trump’s presidency if steps are taken to get in the way of Mueller doing his job.

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