04.04.2018 0

Rosenstein memo to Mueller proves special counsel probe into Manafort far beyond scope of Sessions’ original recusal

By Robert Romano

On March 2, 2017, Attorney General Jeff Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

Arguably, as far as recusals go, it was too broad and did not narrowly list what specific part of the campaign that Sessions would have an appearance of impropriety. But there it is.

This led eventually to the appointment of Robert Mueller as special counsel by Deputy Attorney General Rod Rosenstein on May 17, 2017 to investigate, mainly, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump…”

Since then, Mueller has produced several indictments, including some that appear far outside the scope of Sessions’ original recusal.

For example, former National Security Advisor Michael Flynn was indicted for supposedly lying to investigators about a conversation he had with Russian Ambassador Sergei Kisylak in Dec. 2016, which was after the election. The interview with FBI agents happened in Jan. 2017.

If Sessions was only recused from “matters related in any way to the campaigns for President of the United States,” then how could have Mueller delivered an indictment for actions after the campaign was over? Flynn’s conversation had nothing to do with the campaign, it was reportedly centered on Russia’s potential response to new sanctions that had been slapped on Moscow by the lame duck Obama administration.

Then there’s the fallacious idea that by firing former FBI Director James Comey in May 2017 — on Rosenstein’s recommendation and something the President absolutely has the authority to do with or without a reason — President Trump was somehow obstructing the investigation into Flynn. Again, the Flynn matter was after the election, and the Comey firing well after it. Nothing about Sessions’ original statement indicates he was recused from these matters. In fact, the firing occurred after the recusal, not before.

Somehow, though, it all, reportedly based on leaks probably from Mueller’s team, has come under Mueller’s umbrella. It hasn’t a thing to do with the campaign or even Russia’s efforts to interfere with the election. Not even close.

Another example were the indictments of one-time Trump campaign manager Paul Manafort and his associate Richard Gates.

In the 31-page Manafort and Gates indictment, Russia was mentioned four times, naming Manafort’s company, Davis Manafort Partners, Inc., which had some staff in Russia, and that Manafort’s client, former Ukrainian President Viktor Yanukovych and his Party of the Regions was “pro-Russia,” and that after the civil war began in Ukraine, Yanukovych fled to Russia.

There was no mention of the Russian government or any individuals working for the Russian government. Nor any mention of the 2016 election campaign for President Trump.

Now we know why, based on an Aug. 2017 memo from Rosenstein to Mueller, outlining what he was to investigate. In addition to investigating whether Manafort “[c]omitted a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law,” which would have been within the scope of the Sessions recusal, Mueller was also tasked to see if Manafort “[c]omitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.”

Mueller relies on the fact that Manafort was Trump’s campaign manager in 2016 even though the conduct leading back to Ukraine predated 2016. He never alleges any definitive link between Manafort’s work as campaign manager and the crimes for which he is charged. There are potential Russian connections alluded to, but none directly to the Russian government. It is clear that Manafort’s work in Ukraine before 2016 was not tied the Russian government’s alleged efforts to interfere with the 2016 elections, because they couldn’t have been.

In the Rosenstein memo, there is no pretense that the Ukraine matter had a thing to do with the 2016 election campaign. Manafort worked for Yanukovych from about 2005 through 2014, including Yanukovych’s 2010 electoral win in Ukraine. It had nothing to do with the U.S. elections. It could not have anticipated Trump would run for President or that Manafort would get the campaign manager job. Thus it was always beyond the scope of the recusal by Attorney General Sessions.

Now, this may be a matter that the Justice Department had been pursuing for years, but there was no reason it could not have been given to a U.S. Attorney operating under normal order with oversight by the Attorney General. Did Jeff Sessions have business in Ukraine? No, of course not. Nor did Sessions mention Ukraine as a matter he needed to recuse himself from.

Manafort’s lawyers to their credit are fighting this very issue in federal court, but it shouldn’t take a federal judge’s order to do what should be handled administratively at the Justice Department.

It is clear now that Mueller is investigating those things that Rosenstein has directed him to. So the fault with going beyond the scope of the original recusal lays squarely at the feet of Rosenstein. That does not absolve Mueller of course. He has delivered indictments that similarly go beyond the scope of the recusal.

The question of course is what can be done about what has become a wide-ranging fishing expedition with no end in sight? Sessions should again, clarify that the scope of his recusal included matters specifically pertaining to the 2016 election. Anything not included in that ought to either be reassigned to a U.S. Attorney to handle, or dismissed entirely.

Everyone can see where this is headed. And it would be a grave miscarriage of justice to allow Rosenstein and Mueller to expand what was a broad recusal for the 2016 election even further, although not broad enough to capture what they really wanted to investigate which was Trump and Flynn in 2017, into something it wasn’t.

So far, the Washington Post is reporting that Mueller has told Trump’s legal team that Trump is not a criminal target of the investigation. That is worth considering although if that turns out not to be true, then this would be about undoing the results of the 2016 elections when you get right down to it. An undemocratic coup that has no place in America. Mueller would be alleging crimes the special counsel does not even have the authority to investigate after the election.

Attorney General Sessions can fix this, but he has to clarify what his recusal included, and what it did not.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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