Mueller documents should be declassified

Michael Mukasey and C. Boydon Gray:
It has been 16 months this week since Deputy Attorney General Rod Rosenstein appointed Robert Mueller III as a special counsel to “investigate any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as described in Mr. Rosenstein’s May 17, 2017, letter appointing the special counsel.

But that appointment letter ignored the Department of Justice’s (DOJ) special counsel regulations set forth in 28 CFR SEC. 600 et seq., and the standards and regulations published by the DOJ in the “Domestic Investigations and Operations Guide” (DIOG) that require a predicate criminal offense before an investigation can be commenced.

Under the department’s guidelines, the agency is permitted “to conduct investigations to detect, obtain information about, and prevent and protect against federal crimes,” requiring some reasonable basis for commencing an investigation after having first identified “a particular crime or threatened crime.” Yet, the authorizing letter appointing the special counsel contained no “particular crime or threatened crime” by the president or his campaign, and none has been identified since, despite issuance of a later memo on Aug. 2, 2017, purporting to amplify the earlier appointment.

The president has now retracted his recent request for declassification and release of DOJ/FBI material that would shed defining light on the supposed crime (or, perhaps, lack thereof). It would be important in addition to have full, unredacted disclosure of the August 2017 Rosenstein memo to Mueller elaborating on his mission about which there should be no secrecy. But the DOJ and, now, the United Kingdom appear determined to continue to resist disclosure.

This is a puzzling reversal by the president. There are few if any “sources or methods” that would be revealed by disclosure of the material requested. Nor would — or could — disclosure of the suspected crime interfere with the Mueller investigation. The United Kingdom’s interest appears to be related to protecting a British citizen, who contributed to the FISA warrant, from any further exposure to transparency. But his role already has been amply revealed (i.e., the “Steele dossier”). Disclosure of all of the details to identify what crime is involved (if any) would not subject him to any significant additional exposure.

Why is identification of the suspected crime so critical? The principal reason is that a special counsel, like independent counsels under a now-expired statute, would otherwise have unlimited jurisdiction to inquire into any person's life in search of a crime — the identification of which is required for regular U.S. Attorneys to issue subpoenas.

This, then, would be a complete perversion of the American tradition of investigating crimes, not persons, as so eloquently articulated by then-Attorney General (later Supreme Court Justice) Robert H. Jackson in 1940, when he observed that the prosecutor’s “most dangerous power is ‘that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.’”
I have never heard a persuasive argument for why no crime was identified to be investigated.  What Rosenstein did is allow an illegal fishing expedition in search of a crime.  This appears to have been done to mollify Democrats upset with his firing for Comey because they wanted to hamstring Trump.  It was an illicit purpose which Democrats continue to exploit.


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