My own particular objection is not even a constitutional one. That’s Calebresi’s argument I linked to.
As to my objection, obviously the first defense of the DOJ to it will be that the jurisdiction of a Special Counsel is limited to a particular matter or matters, so therefore he does not amount to a de facto US Attorney because unlike a real US Attorney he does not have the authority to look at any and all federal crime in his judicial district. They may win on that point.
But Mueller’s case in particular is somewhat weak for them on that argument. A mandate to investigate all ‘links’ between a large number of people associated with a winning presidential campaign and the Russian government is an extremely broad jurisdiction and not even tied to any identified crime. Even more than that, that point is described as merely included within “the investigation confirmed by” Comey in March 2017, which was a counterintelligence investigation. Jurisdiction of a special counsel to conduct an unlimited counterintelligence investigation against Russia is breathtakingly broad. And unlike a normal US Attorney, Mueller is not limited to a specific judicial district - he may roam the entire country. And furthermore, the second prong of “any matters that arose or may arise directly from the investigation” appears to be interpreted by Mueller not limited to process crimes like obstruction and perjury. In other words, whatever comes across the transom.
Judge Ellis was trying to clarify a point related to this issue by trying to get Special Counsel lawyer Dreeben to admit that the basis of jurisdiction for indicting Manafort on old bank fraud and tax filing charges is to put pressure on him to give evidence on something that does come directly with the mandate. (Of course, having clarified that doesn’t mean Judge Ellis won’t rule in the government’s favor.)
I heard Rosenstein touch on the subject the other day, and he offered what I take to be their fall-back defense of the legality of appointing a special counsel: that it would come from the same source as the AG’s authority to appoint a temporary US Attorney (28 U.S.C. § 546). But that argument is much weaker than their first defense.
Hopefully the defendants will get some traction on this issue.
Ultimately I think the special counsel regulation will have to be changed to provide that instead of taking someone off the street, not a government employee to be a special counsel, they must select from the sitting US Attorneys someone who does not have the conflict at issue and that US Attorney will be given the special counsel assignment.
Because even if they didn’t have the poorly-worded drafting of the regulation that exposes them to my charge that they have created a de facto US Attorney, there is still the subtantive problem of taking someone off the street (”The Special Counsel shall be selected from outside the United States Government”), giving him prosecutorial authority over federal crimes and yet legally prohibiting the DOJ from exercising day-to-day supervision over that person brought in off the street.
Interestingly, Comey side-stepped this problem when he appointed as special counsel in the Valerie Plame matter a sitting US Attorney instead of relying on the 1999 DOJ special counsel regulations.
And it looks like Sessions will be going that route as well if he decides to assign sitting US Attorney Huber the task of prosecuting crimes identified from matters in the upcoming OIG reports.
Not being a federal attorney I dont know what the remedy is if Mueller tries to proceed against manafort on a case from 2005 which obviously didnt arise from his current investigation. In state court it would be thrown out for precomplaint delay. Moreover, I also dont know what recourse exists for mueller go off the deep end on alleged crimes that have nothing to do with the collusion investigation. And I wish I knew the remedy for mueller being appointed without specification of a crime to be investigated as I am led to believe the DOJ regs require.
Personally I hope the courts really come down on mueller for this roughshod investigation of his. This type of fishing expedition is what give prosecutors a bad name. And in his case he apparently has yet to turn up any evidence for which he was initially employed.
On practical, legal and ethical grounds mueller should be ground to a halt. But then I recall what this dirtbag was like when he headed the FBI. A more incompetent, political hack you could not find. In my view he has a long storied record of corruption and incompetence.