Former FBI Director Robert Mueller will lead the investigation into the God-King’s ties with Russian intelligence. (More)

“I accept this responsibility and will discharge it to the best of my ability”

Deputy Attorney General Rod Rosenstein appointed Mueller last night:

“In my capacity as acting attorney general I determined that it is in the public interest for me to exercise my authority and appoint a special counsel to assume responsibility for this matter,” Rosenstein said in a statement. “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Mueller, often described by those who worked for him as a stern and press-averse disciplinarian, issued a characteristically terse statement: “I accept this responsibility and will discharge it to the best of my ability.”

That phrase “a degree of independence” is important. A “special counsel” does not have the same unfettered discretion held by post-Watergate “independent counsels” like Kenneth Starr, and the law that authorized independent counsels was allowed to lapse at the end of the Bill Clinton administration. Instead, a “special counsel” answers to the Attorney General:

§ 600.7 Conduct and accountability.

(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.

(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, 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. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

So under a strict reading of the law, Jeff Sessions could tell Mueller to focus on This (say, prosecute journalists who report leaks) and not investigate That (the substance of the leaks themselves).

“Mueller is of sufficient stature that any effort to rein him in would likely provoke an immediate scandal if he were to go public”

However, two practical factors give Mueller broader latitude:

First, the Attorney General is implicated in the investigation and has recused himself. Were he to try to steer Mueller’s investigation – personally or through a subordinate like Rosenstein – he would face an ethics charge and possible disbarment.

Second, Mueller has the reputation and clout to stand up to the God-King’s pressure, as Lawfare’s Jane Chong, Quinta Jurecic, Susan Hennessey, Matthew Kahn, and Benjamin Wittes explain:

There’s a lot of reason to be cheered this evening by the decision of Deputy Attorney General Rod Rosenstein to name a special counsel to investigate L’Affaire Russe, and there’s even more reason to be cheered that the individual he selected is Robert Mueller. Earlier this evening, David Kris – who worked closely with him – described Mueller as “experienced, knowledgeable, capable. He is utterly incorruptible. He cannot be intimidated. At this stage in his career, he has nothing to prove, no reputation to burnish, no axe to grind. He is ramrod straight in his integrity.” The description is one from which few who have worked with Mueller will dissent.
So unlike the independent counsels of old, Mueller will not be entirely separate from the Justice Department – for better or for worse.

In Mueller’s case, that distinction is less of a concern than it would be for many other appointees. Mueller is of sufficient stature that any effort to rein him in would likely provoke an immediate scandal if he were to go public, and that means his threat of resignation is a very potent weapon. He also has the kind of experience that ensures he will not be shy when it comes to construing the limits of his jurisdiction. He arguably does not necessarily need the kind of statutory guarantees of independence that the old statute offered; in some respects Mueller is kind of his own guarantee.

The Lawfare crew to on to explore the scope of the investigation outlined by Rosenstein in the letter of appointment, and they conclude: “The bottom line is that, on its face, the scope of Mueller’s jurisdiction seems reasonable.”

That said, they also emphasize that Mueller’s investigation will run concurrent with and distinct from probes by House and Senate committees. And that’s an important part. Mueller will not have “the final say” on whether and how Russia meddled in the 2016 election, or whether and how the God-King and his campaign colluded in that meddling. Still, his investigation should be less dominated by partisan politics.

“This is a marathon, it’s not a sprint”

And while this week’s events have piled up at breakneck pace, senior Democratic leaders are urging patience:

House Democrats are buzzing about the possibility of President Donald Trump being impeached. But party leaders aren’t going there – at least not yet.

Top Democrats in the House and Senate know their liberal base is clamoring for a harder line, especially after reports that Trump urged then-FBI Director James Comey to stop investigating ousted national security adviser Michael Flynn.
Senior Democrats want to avoid looking as if they are gunning for impeachment, aides say.

“There’s a reason that most of my colleagues have” stopped short of suggesting impeachment is in the offing, liberal Sen. Sheldon Whitehouse (D-RI) told POLITICO. “Not the least of which is, we need to get a lot more facts before us before you could make a conclusion like that.”
Both Senate Minority Leader Chuck Schumer (D-NY) and House Minority Leader Nancy Pelosi (D-CA) publicly tamped down impeachment talk this week, and Senate Minority Whip Dick Durbin (D-IL) said Wednesday he’s urged patience to the party’s activists.

“I’ve been talking to the base since November the 9th and telling them this is a marathon, it’s not a sprint,” Durbin said. “We have an orderly process in our government. We’re going to follow it. They don’t like to hear it, but I think that’s the facts.”

The week’s developments are encouraging, but we’re nowhere near ‘there’ yet.

“Acting on behalf of a foreign nation – from which he had received considerable cash – when making a military decision

For now, the investigations’ focus will likely remain on Michael Flynn and Paul Manafort:

Former Trump aides Michael Flynn and Paul Manafort have emerged as key figures in the FBI’s investigation into Russian campaign interference, which has just been taken over by a special counsel, four law enforcement officials told NBC News.

Officials say multiple grand jury subpoenas and records requests have been issued in connection with the two men during the past six months in the ongoing probe into whether the Trump campaign colluded with Russian attempts to influence the election, an inquiry that will now be overseen by former FBI Director Robert Mueller.

The FBI, with the help of the Treasury Department, the CIA and other agencies, is examining evidence of possible contacts, money transfers and business relationships between a variety of Trump associates and Russian officials, the sources say. The investigation goes well beyond Flynn, Manafort and a possible American connection, to include how Russian intelligence services carried out the campaign of fake news and leaking hacked emails that intelligence officials say was meant to hurt Hillary Clinton and benefit Donald Trump.

And Flynn has even more questions to answer after today’s McClatchy report:

One of the Trump administration’s first decisions about the fight against the Islamic State was made by Michael Flynn weeks before he was fired – and it conformed to the wishes of Turkey, whose interests, unbeknownst to anyone in Washington, he’d been paid more than $500,000 to represent.

The decision came 10 days before Donald Trump had been sworn in as president, in a conversation with President Barack Obama’s national security adviser, Susan Rice, who had explained the Pentagon’s plan to retake the Islamic State’s de facto capital of Raqqa with Syrian Kurdish forces whom the Pentagon considered the U.S.’s most effective military partners. Obama’s national security team had decided to ask for Trump’s sign-off, since the plan would all but certainly be executed after Trump had become president.

Flynn didn’t hesitate. According to timelines distributed by members of Congress in the weeks since, Flynn told Rice to hold off, a move that would delay the military operation for months.
Now members of Congress, musing about the tangle of legal difficulties Flynn faces, cite that exchange with Rice as perhaps the most serious: acting on behalf of a foreign nation – from which he had received considerable cash – when making a military decision. Some members of Congress, in private conversations, have even used the word “treason” to describe Flynn’s intervention, though experts doubt that his actions qualify.

But treason or not, Flynn’s rejection of a military operation that had been months in the making raises questions about what other key decisions he might have influenced during the slightly more than three weeks he was Trump’s national security adviser, and the months he was Trump’s primary campaign foreign-policy adviser.

And the probe may not be limited to the God-King or his staff.

“There’s two people I think Putin pays: Rohrabacher and Trump”

It could also sweep in senior House Republicans:

A month before Donald Trump clinched the Republican nomination, one of his closest allies in Congress – House Majority Leader Kevin McCarthy – made a politically explosive assertion in a private conversation on Capitol Hill with his fellow GOP leaders: that Trump could be the beneficiary of payments from Russian President Vladimir Putin.

“There’s two people I think Putin pays: Rohrabacher and Trump,” McCarthy (R-CA) said, according to a recording of the June 15, 2016, exchange, which was listened to and verified by The Washington Post. Rep. Dana Rohrabacher is a Californian Republican known in Congress as a fervent defender of Putin and Russia.

House Speaker Paul D. Ryan (R-WI) immediately interjected, stopping the conversation from further exploring McCarthy’s assertion, and swore the Republicans present to secrecy.

If McCarthy wasn’t merely talking through his hat – if he has evidence the God-King or Rep. Rohrabacher received money from Russia – that’s a whole new can of worms that may implicate Speaker Ryan in the cover-up.

Depending on what facts Mueller and the House and Senate investigators can prove, there may be enough stink to bury not only the God-King’s presidency but also the Republican Party. But again, we’re nowhere near ‘there’ yet.

Even so, we look less like a third world banana republic than we did this time last week.


Photo Credit: Larry Downing (Reuters)


Good day and good nuts