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Deputy AG Rosenstein on Russiagate: no ‘fishing expeditions’; Grand Jury subpoenas ‘normal’; no indictments pending

Deputy Attorney General Rod Rosenstein – the man who is supervising Special Counsel Robert Mueller’s Russiagate investigation – has given an interview to Fox News in which he has attempted – within the limits of the duty of confidentiality that cover all such investigations – to pour cold water on the overheated reporting of the last few days.

On the subject of the Grand Jury, he first of all refused to say whether or not one has been specially empanelled (as I have said previously, a highly sourced leak to the New York Times has shown that it has not).  However he did say this about the use of Grand Juries in investigations of this sort.

WALLACE: We learned this week that special counsel Robert Mueller is taking his case to a grand jury. I know you can’t and won’t talk about the details of that case, but as a general proposition, does the fact that a prosecutor takes a case to a grand jury, what does that say about the likelihood of indictments?

ROSENSTEIN: Chris, I’m — you are right that I’m not going to comment on the case. I’m not going to comment about whether Director Mueller has or hasn’t opened a grand jury. You know, we read a lot about criminal investigations in the media and some of those stories are false…..

(bold italics added)

The highlighted words are a clear hint from Rosenstein that as the New York Times has previously reported no special Grand Jury has in fact been empanelled, and that the reporting that one has is false.

Having to the extent that he could cleared up the matter of whether a special Grand Jury had been empanelled, Rosenstein clearly explained what Grand Juries are used for, and why construing the likelihood of criminal charges being brought because an investigation is making use of them is completely unwarranted

WALLACE: But I’m asking you a different question. What does it say when a prosecutor takes a case, in general, to a grand jury about the likelihood of indictments?

ROSENSTEIN: In general, Chris, it doesn’t say anything about the likelihood of indictments because we conduct investigations and we make a determination that at some point in the course of the investigation about whether charges are appropriate.

WALLACE: And what’s the advantage in terms of an investigation into taking a case to a grand jury?

ROSENSTEIN: Many of our investigations, Chris, involve the use of a grand jury. It’s an appropriate way to gather documents, sometimes to bring witnesses in, to make sure that you get their full testimony. It’s just a tool that we use like any other tool in the course of our investigations.

(bold italics added)

This is obviously correct, as is the further point about Mueller’s use of Grand Juries to subpoena documents made by New York State Governor Chris Christie, like Rosenstein a former federal prosecutor

Christie, a former federal prosecutor, made similar comments about a grand jury’s power to issue subpoenas and gather information, while downplaying the news about Mueller purportedly having impaneled another one, reported first by The Wall Street Journal.

“The coverage about how monumental this was is just a fundamental misunderstanding of the way this process works, Christie said on CNN’s “State of the Union.”

He called Mueller’s use of such a jury “a normal step taken by a careful prosecutor who is doing a thorough investigation.”

(bold italics added)

Compare these calm statements of Rosenstein and Christie with my essentially identical statement about the use of the Grand Jury device which I made when the story first broke three days ago

It is in fact standard practice in certain states of the US for investigating prosecutors to use Grand Juries to issue subpoenas, thereby avoiding the complexities of applying to a court for warrants which might require the person under investigation to attend and have his say.

That is all that Mueller appears to have done, and it is in fact something which is regularly done in investigations of this sort.  Indeed it was obviously something which it was envisaged Mueller would do when his inquiry was first set up.

What seems to have happened is that someone learnt of the fact that Mueller had used a Grand Jury to issue subpoenas as part of his investigation and jumped to conclusions from that fact which are unwarranted.

The hysteria and the gloating we have witnessed over the last few days on this issue of Mueller’s use of a Grand Jury is unwarranted and groundless.  I cannot believe that the media in the US of all places is unfamiliar with the use of Grand Juries in investigations.  The tidal wave of misrepresentation there has been on this subject over the last few days is therefore deliberate.

On the subject of Mueller and his team now hunting for evidence of other crimes Trump and his associates might have committed which are unrelated to the claims of collusion between the Trump campaign and Russia, Rosenstein had this to say

WALLACE: When you — now, I know I’m very dangerous territory here, but hear me out on this because I’m not asking about the investigation. When you appointed Mueller, and you were the one who did, you had to sign an order authorizing the appointment of a special counsel, and you said that he was authorized to investigate any coordination with Russia and — I want to put these words on the screen — any matters that arose or may arise directly from the investigation.

My question is, does that mean that there are no red lines that Mueller or any special counsel can investigate under the terms of your order, anything he finds?

ROSENSTEIN: Chris, the special counsel is subject to the rules and regulations of the Department of Justice, and we don’t engage in fishing expeditions. Now, that order that you read, that doesn’t detail specifically who may be the subject of the investigation —

WALLACE: Right.

ROSENSTEIN: — because we don’t reveal that publicly.

But Bob Mueller understands and I understand the specific scope of the investigation and so, it’s not a fishing expedition.

WALLACE: I understand it’s not a fishing expedition, but you say any matters that arose or may arise directly from the investigation. In the course of his investigation of the issues that he is looking at, if he finds evidence of a crime, can he look at that?

ROSENSTEIN: Well, Chris, if he finds evidence of a crime that’s within the scope of what Director Mueller and I have agreed is the appropriate scope of the investigation, then he can. If it’s something that’s outside that scope, he needs to come to the acting attorney general, at this time, me, for a permission to expand his investigation. But we don’t talk about that publicly.

And so, the speculation you’ve seen in the news media, that’s not anything that I’ve said. It’s not anything Director Mueller said. We don’t know who’s saying it or how credible those sources are.

(bold italics added)

The highlighted words are as clear a statement as Rosenstein can make given the constraints upon him that no fishing expedition is underway and that claims in the media that one is happening are untrue.

That has to be correct.  I would add that since the instructions Rosenstein gave Mueller, which set out the scope of his inquiry, were made public I would expect any variation or extension of those instructions authorising Mueller to investigate matters unrelated to Russiagate to be made public also.  Indeed Rosenstein’s comments appear to say as much.

Since no variation or extension of Mueller’s instructions has been made public, none can have taken place, and all claims that Mueller and his inquiry are engaging in a fishing expedition are therefore wrong and groundless.

As I have said previously, engaging in a fishing expedition of the sort the media has been writing about would be grossly unethical.  Not only is that my view but interestingly it is also the view of Matthew Whittaker, one of CNN’s own Legal Commentators, as shown by these comments in a lengthy article he has written for CNN

According to a CNN article, Mueller’s investigators could be looking into financial records relating to the Trump Organization that are unrelated to the 2016 election. According to these reports, “sources described an investigation that has widened to focus on possible financial crimes, some unconnected to the 2016 election.” The piece goes on to cite law enforcement sources who say non-Russia-related leads that “involve Trump associates” are being referred to the special counsel “to encourage subjects of the investigation to cooperate.”

This information is deeply concerning to me. It does not take a lawyer or even a former federal prosecutor like myself to conclude that investigating Donald Trump’s finances or his family’s finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.

In fact, Deputy Attorney General Rod Rosenstein’s letter appointing special counsel Robert Mueller does not give Mueller broad, far-reaching powers in this investigation. He is only authorized to investigate matters that involved any potential links to and coordination between two entities — the Trump campaign and the Russian government. People are wrongly pointing to, and taking out of context, the phrase “any matters that arose or may arise directly from the investigation” to characterize special counsel’s authority as broad.

The word “investigation” is clearly defined directly preceding it in the same sentence specifically as coordination between individuals associated with the campaign of Donald Trump and Russia. The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be.

Indeed, Sunday on Fox News, Rod Rosenstein acknowledged Mueller had limited authority and would need to seek his permission to expand the investigation.

Beyond the legal reading, the broad authority argument defies plain logic: If the special counsel could investigate anything he wants, why would there even need to be a letter spelling out the specific limits of the investigation?

One of the dynamics at play here is that people are conflating this investigation and Kenneth Starr’s 1994 investigation into President Bill Clinton. While partly understandable at first glance, the two investigations are not comparable — not only have more than two decades passed since then, but a completely new law and legal framework governing separate investigations has also passed. Starr was an independent counsel and Mueller is a special counsel, the two words are different for a reason.

Any investigation into President Trump’s finances or the finances of his family would require Mueller to return to Rod Rosenstein for additional authority under Mueller’s appointment as special counsel.

If he were to continue to investigate the financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt. If Mueller is indeed going down this path, Rosenstein should act to ensure the investigation is within its jurisdiction and within the authority of the original directive.

I’ve prosecuted several financial crimes at the federal level and I’ve also defended plenty in my private practice. From this unique vantage point, I can understand how a motivated prosecutor, in a broad investigation into the financial affairs of high-profile individuals, can become overzealous toward the targets of such probes — with calamitous results. While no one is above the law, in situations such as this, any seasoned prosecutor must use discretion both judiciously and expertly.

It is time for Rosenstein, who is the acting attorney general for the purposes of this investigation, to order Mueller to limit the scope of his investigation to the four corners of the order appointing him special counsel.

If he doesn’t, then Mueller’s investigation will eventually start to look like a political fishing expedition. This would not only be out of character for a respected figure like Mueller, but also could be damaging to the President of the United States and his family — and by extension, to the country.

(bold italics added)

Whittaker’s fear that a fishing expedition is taking place is as I have said unwarranted because as Rosenstein has made clear no fishing expedition is in fact taking place, and media stories that one is – like the CNN article Whittaker refers to – are false.  However I have set out Whittaker’s comments at length because they provide a detailed explanation from a US attorney of how deeply wrong and unethical such a fishing expedition would be.

What is really concerning is not that a fishing expedition is underway; it is that the entire media reporting of the state of the Russiagate inquiry over the last four days has been almost entirely false.

I cannot avoid the nagging feeling that the true reason there is all this talk of Mueller undertaking a fishing expedition is precisely because of growing alarm that Mueller’s investigation is drawing a blank.  Given the disaster for the credibility of some people if Mueller clears Trump and his associates, Mueller and Rosenstein are therefore coming under pressure to expand the scope of their inquiry to cover other unrelated things in the hope that something damaging to Trump that either he or his associates can be charged with will turn up.

This looks to me to be the agenda behind the overheated reporting of the last few days about Grand Juries and fishing expeditions: to make it clear to Mueller that his investigation will be deemed to have “failed” if he does not bring charges against some people, and to put pressure on him and Rosenstein to expand the scope of the inquiry to ensure that he does.

Much now therefore depends on Rosenstein and Mueller.  They have reputations to defend.  Will they live up to them by resisting this pressure?

Meanwhile, as reports – which are almost certainly false – that Trump has been thinking of sacking Mueller continue to circulate, it is richly ironic that the actual pressure on Mueller appears to be coming not from President Trump but from his opponents.

What do you think?

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