The worst abuses of past independent and special counsels in USDoJ have resulted from investigations ranging far afield of the issue that prompted an appointment in the first place. Time and again, in administrations of both parties, we saw these specially appointed attorneys come up with nothing to prosecute on the original issue and then go after someone for something only tangentially related. After both parties had been burned in this way, the Independent Counsel Law was allowed to expire, unmourned, with no real effort to renew it.
So when it came time for Deputy Attorney General Rod Rosenstein to appoint a special counsel, he should have learned from history, not repeated it, and strictly limited the special counsel's scope to the matters making an appointment necessary. The special counsel should be looking into allegations of "the Russian government's efforts to interfere in the 2016 presidential election," as the lead paragraph of the appointment order says, and nothing else. Anything else he discovers should be referred to Main Justice. Instead, Mr. Rosenstein did just the opposite, giving Mr. Mueller a broad sweep including "matters that ... may arise directly from the investigation," a potentially limitless scope.
Sure enough, we now have reports that Mr. Mueller is intensely interested in events occurring after President Trump took office, including the firing of policy-making officers of the executive branch. There are two reasons he should not be investigating these matters.
So when it came time for Deputy Attorney General Rod Rosenstein to appoint a special counsel, he should have learned from history, not repeated it, and strictly limited the special counsel's scope to the matters making an appointment necessary. The special counsel should be looking into allegations of "the Russian government's efforts to interfere in the 2016 presidential election," as the lead paragraph of the appointment order says, and nothing else. Anything else he discovers should be referred to Main Justice. Instead, Mr. Rosenstein did just the opposite, giving Mr. Mueller a broad sweep including "matters that ... may arise directly from the investigation," a potentially limitless scope.
Sure enough, we now have reports that Mr. Mueller is intensely interested in events occurring after President Trump took office, including the firing of policy-making officers of the executive branch. There are two reasons he should not be investigating these matters.
First, the connection with the matter he was appointed for is too tenuous. If he believes that Main Justice cannot investigate these matters, then he should recommend the appointment of a separate special counsel for them. Special counsel mission creep of this kind has a long, ugly history and should never be allowed again.
Second, under the unitary executive system created by the Constitution, the President has absolute authority to fire any policy-making executive officer. The exercise of that authority cannot be made a crime. Any Act of Congress that did so would be unconstitutional as applied.
So what to do? Attorney General Sessions was right to recuse himself from campaign-related matters, but his wording may have been too broad. "I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States." "In any way" is potentially limitless. Mr. Sessions should revise his recusal to matters directly related to the campaigns, specifically excluding any events after the election.
Mr. Rosenstein's authority to appoint a special counsel and determine the scope of the investigation should therefore be limited to the matters on which he is Acting Attorney General, which should exclude any matters occurring after the election.
Second, under the unitary executive system created by the Constitution, the President has absolute authority to fire any policy-making executive officer. The exercise of that authority cannot be made a crime. Any Act of Congress that did so would be unconstitutional as applied.
So what to do? Attorney General Sessions was right to recuse himself from campaign-related matters, but his wording may have been too broad. "I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States." "In any way" is potentially limitless. Mr. Sessions should revise his recusal to matters directly related to the campaigns, specifically excluding any events after the election.
Mr. Rosenstein's authority to appoint a special counsel and determine the scope of the investigation should therefore be limited to the matters on which he is Acting Attorney General, which should exclude any matters occurring after the election.
