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Why is Robert Mueller even investigating the presidential transition?

Why is Robert Mueller even investigating the presidential transition?

The Order appointing Mueller concerns election interference, not post-election political decisions of the winning candidate.

Michael Flynn pleaded guilty last week to lying to FBI investigators regarding conversations Flynn had with the Russian Ambassador in late December 2016, barely three weeks before the Trump administration was sworn into office.

Such transitions contact with foreigners are routine, and took place during prior administrations, including the Obama administration. That makes perfect sense, since an incoming administration needs to hit the ground running with its foreign policy. Certainly there would have been howls of outrage from the media and Democrats had the incoming Trump administration waited until after the inauguration to make contact with our primary geo-political foes; it would have been portrayed as a sign of incompetence and amateurishness.

There was nothing illegal about Flynn speaking with the Russian ambassador and others. But he ran afoul of the law when he lied about it to the FBI.

It is clear from the prosecution of Flynn that Mueller views the transition as within the scope of Mueller’s investigation, otherwise there would have been no reason for Mueller to prosecute Flynn. The lying took place before Mueller was appointed and did not concern conversations during the Trump campaign. For lying to the FBI when he did, Flynn could have been prosecuted by DOJ itself.

Yet Mueller’s team took it on themselves to prosecute the case involving a crime (lying) that took place after the new administration was sworn in regarding a conversation during the transition. The public documents regarding Flynn’s plea make clear that the transition is in focus.

If news reports have any credibility (and they may not), then Mueller is investigating the political actions of the Trump transition team during the transition period.

What authority, however, gives Mueller power to investigate the political strategies of the incoming Trump administration long after the election was over? It does not appear that Mueller has that power under the Order appointing him as Special Counsel.

In Order No. 3915-2017, Mueller was appointed with a specific mandate, to continue an investigation started by James Comey into Russian interference in the election:

(a) Robert S. Mueller III is appointed t() serve as Specia] Counsel for the United States Department of Justice.
(b) The Special Counsel is authorized to conduct the investigation confinned by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination bet ween the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

At the March 20, 2017 hearing, Comey described the investigation as relating to election interference:

As you know, our practice is not to confirm the existence of ongoing investigations, especially those investigations that involve classified matters, but in unusual circumstances where it is in the public interest, it may be appropriate to do so as Justice Department policies recognize. This is one of those circumstances.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the ature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

(Full transcript here)

Comey’s reference to a “counterintelligence investigation” clearly was in the context of the preceding sentence of interference in the election. So to the extent the Order governs Mueller’s authority, that authority is limited to the election-related matters, including counterintelligence investigations related to the election.

Mueller cannot successfully argue that the political discussions during the transition fall under his power, under the Order, to investigate under 28 C.F.R. § 600.4(a), which concerns “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” There was no Special Counsel investigation during the transition, so there was nothing with which the Trump transition team could interfere.

Deputy Attorney General Rod Rosenstein takes the position that Mueller can prosecute any crimes he finds:

Rosenstein said special counsel Robert S. Mueller III can investigate any crimes that he might discover within the scope of his probe, but the deputy attorney general would not discuss which individuals are the subject of their inquiry. The interview comes days after Trump said he believes it would be inappropriate for Mueller to dig into Trump family finances.

“The special counsel is subject to the rules and regulations of the Department of Justice, and we don’t engage in fishing expeditions,” Rosenstein said when asked about the probe in an interview on “Fox News Sunday.”

Could Mueller start investigating street crimes, acting as a roving District Attorney across the land? Just because he found a crime, could he prosecute it, even if not within the proper scope of his investigation?

Rosenstein acknowledged the limits of Mueller’s powers:

“If he finds evidence of a crime that is within the scope of what Director Mueller and I have agreed is the appropriate scope of this investigation, then he can,” Rosenstein said. “If it’s something outside that scope he needs to come to the acting attorney general, at this time me, for permission to expand his investigation.”

Has Rosenstein given Mueller the authority to investigate the political strategies of the incoming administration during the transition? If so, that would be news.

The danger the Mueller investigation’s apparent overreach poses goes beyond the potential harm to individuals under investigation or prosecution.

To the extent Mueller’s team is investigating the political decisions and strategies of the incoming Trump administration during the transition period, it amounts to an interference in the post-election political process and is beyond Mueller’s authority.


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He’s investigating the transition because FBI Comey, with his illegally leaked narrative, actively set up a requirement for Mueller to be appointed as Special Investigator. The entire investigation is a ruse to undermine the Trump administration, and nevertrumpers jumped on board in support to assist blocking Trump’s efforts.

Finally, a clear analysis of the Mueller authorization. I suppose going after Flynn could facilitate the authorization in some way. Correct me if I am wrong but I have understood perjury convictions are pursued if the perjury was material to the matter at hand. If having no consequence to the matter at hand why pursue. Point being Flynn was pursued for political purposes, not legal purpose.

Why? Because Trump won and the FBI and DOJ had expected Hillary to win. They had plans.

Drain the swamp? Hell, bulldoze the entire place…

The amazing thing is that nothing Flynn did was illegal, up until the point that he lied about it to the FBI. Mueller picked out the slowest, dumbest member of the pack to prey upon.

The thing is, Flynn’s “cooperation” isn’t likely going to be worth much. He wasn’t in office long enough to do anything.

    … and the ONLY reason the FBI KNEW that he “lied” is b/c of their FISA wiretap!!! It is reasonable for Flynn, hated by the Obama folks remember… high up intel guy… would be less than forthcoming during the transition to agents on a witch hunt. This whole thing is a sham.

    Milhouse in reply to Matt_SE. | December 3, 2017 at 3:21 pm

    The amazing thing is that nothing Flynn did was illegal, up until the point that he lied about it to the FBI.

    The same with Scooter Libby, Martha Stewart, and just now with George Papadopoulos. It’s not even necessary that they actually lied, just that the FBI claim they lied; interviews are not recorded so the agent can claim you said whatever he likes.

      puhiawa in reply to Milhouse. | December 4, 2017 at 2:40 am

      You realize that the FBI and DOJ will accuse targets of lying when there is no court reporter or anyone other than themselves?

        Someone really needs to ask why Flynn wasn’t afforded “equal treatment under the law” by having a Hillary interview where no notes were kept.

        Of course, we know why: the FBI knew she would lie and didn’t want any inconvenient evidence.

Well … while I agree that Mueller’s up to no good, it’s not obvious that this is it.

Flynn’s transgression was not some ultra-trivial thing that only anal FBI types dead-set on entrapment would even notice. Recall that it got him fired. He apparently not only tried to mislead FBI, but the President and Vice-President as well.

Mueller was assigned to “prosecute federal crimes arising from the investigation of these matters,” these matters being the ostensible Russian collusion. Flynn’s legal faux pas was indeed committed during the investigation of the collusion question … but it was FBI’s investigation, rather than Mueller’s. It’s not obvious that that’s an important distinction. It looks to me that Mueller isn’t straying from his assignment here.

So far as homing in on further crimes, though, he seems to be all at sea, since, as everyone has pointed out, there’s no crime in Team Trump talking to Russians after the election.

    Matt_SE in reply to tom_swift. | December 3, 2017 at 12:33 pm

    If Flynn’s lies were not of themselves serious enough for prosecution, then he already paid the price by being fired. What he’s being prosecuted for now is lying to the FBI about details in testimony, not national security breaches. Details the FBI already knew because they’d surveilled him.

    I’m not a lawyer, but this seems similar to entrapment to me.

      Recce1 in reply to Matt_SE. | December 4, 2017 at 2:13 pm

      This isn’t remotely about punishing Flynn legally. It’s about trying to get his to turn on Trump, even if it means lying.

    tom_swift in reply to tom_swift. | December 3, 2017 at 12:34 pm

    Of course, Flynn talking to Russians after the election can’t possibly involve collusion to pervert an election which was already over. Which would mean that Mueller is indeed wandering a bit astray, by investigating something which can’t possibly involve “these matters”.

    OK, I concede … something’s rotten in Washington.

“To the extent Mueller’s team is investigating the political decisions and strategies of the incoming Trump administration during the transition period, it amounts to an interference in the post-election political process and is beyond Mueller’s authority.”

As Andrew McCarthy pointed out, this isn’t law, it’s politics.
The only thing that matters is who has the power to do anything about Mueller’s overreach?
He’ll just continue his illegal witch hunt until somebody actively opposes him. Who is going to do that? Sessions?

    AmandaFitz in reply to Matt_SE. | December 3, 2017 at 12:50 pm

    Hardly! Sessions is not a street fighter- he’s a southern gentleman who believes in silly ideals like honor, etc. He simply doesn’t have the cojones to take on Mueller and Rosenstein.

    Since this whole process is designed to set up a smokescreen for impeachment, there’s no way to rein in Mueller without setting up “Saturday Night Massacre 2.0”. Best way to rein in Mueller is by primarying out enough Vichy Mitchy supporters and then getting rid of Democrats in the general.

We need a special counsel to keep America safe from process crimes.

Mueller was never going to adhere to the vague limitations of his mandate. His job is simple, put enough pressure on the Trump administration to keep them from pursuing investigations and filing charges in the myriad illegal actions of the Obama administration. This is impossible if Mueller limits himself to actions which occurred during the election campaign. So he has now expanded his “investigation” to include decade old real estate deals, interactions with foreign countries other than Russia, contacts during the transition and any other procedural crime which he can find to put pressure on Trump.

It is amazing that the first hing AG Sessions did, upon assuming office was to divorce himself from the Russian Collusion investigation. He then turns it over to Rob Rosenstein who orchestrates the firing of James Comey, who was under tremendous pressure to testify on illegalities and improprieties in the Obama administration and during the election. This afford Comey a modicum of protection, now that he is no longer employed by the federal government. That rapidly degrading firewall gone, Rosenstein, with the concurrence of Sessions, appoint Mueller as SP. Not only is Mueller a close personal friend of Comey, but Rosenstein, a seasoned prosecutor, drafts an appointment order which is so vague and open ended that the Professor wouldn’t have given him higher than a D in contracts class. Incompetence? Maybe. Since then, Rosenstein has apparently stonewalled the Congress and even the President, who has been publicly calling for the release of documents under FOIA, which the FBI and DOJ are not turning over. If anyone really believes that Mueller is acting without the concurrence of Rosenstein, they need to take another hard look at the actions of the players.

“Why is Robert Mueller even investigating the presidential transition?”

He’s not investigating anything. He’s just collecting scalps.

I don’t have any respect left now for the FBI and DOJ.

If at this late date they would risk the reputation and trust of at least the half of Americans who voted for Trump just to try and impeach him then they are not anything but self-serving hacks and I can’t have any respect for that. In fact. I don’t even feel comfortable living in a Constitutional Republic where the law enforcement people are interested in one party rule.

Why doesn’t the investigation include all candidates?

Two words:

Feckless Sessions

OleDirtyBarrister | December 3, 2017 at 2:46 pm

In my opinion, the targets and subject of the investigation should attack Meuller with a petition for writ of quo warranto, if, for nothing else, to force put the scope of his power in issue and what he is doing relative to the ostensible scope. Moreover, they should use the overwhelming support for Hillary among the investigators and attorneys against them.

Anyone under indictment or information should challenge his authority.

    Close The Fed in reply to OleDirtyBarrister. | December 3, 2017 at 9:07 pm

    Dear Ole Dirty Barrister:

    Totally agree with you on the quo warranto action.

    Post-election has NOTHING to do with pre-election.

    Sessions really disappointed me, but at least he backed Trump at the beginning.


“Why is Robert Mueller even investigating the presidential transition?”

Umm, because us stupid rubes out in flyover country actually voted for Donald Trump as President and our betters in D.C. need to do something about that?

OleDirtyBarrister | December 3, 2017 at 2:49 pm

If I were among the subject and targets, I’d be thinking about what remedies I had in terms of forcing a recusal of Meuller and his team due to the numerous conflicts of interest and the appearance of bias.

“Why is Robert Mueller even investigating the presidential transition?…”

Because nobody is stopping him. In particular, the rats of the GOPe.

How there is not a special prosecutor being named to investigate klinton and obama can only be explained by the corrupt character of the GOPe, and Swamp Sessions being more loyal to the GOPe than to his country.

Investigating during transition would expose the quid pro quo with the Russians if one existed. I am sure Mueller was looking for that smoking gun. A thank you to Kislyak etc

Look, Trump committed the high crime and misdemeanor of making the self-appointed smartest people on earth look stupid. He beat the media’s Anointed Shrillary Shrooooo, and might do it again in a landslide in 2020.

Mrs. Clinton, the most patriotic thing you could do at this point would be to go home and bake cookies for your granddaughter. Mr. Obama, the most patriotic thing you could do at this point is go play some rounds of golf, instead of acting as American’s first Third World Great Leader and President Anointed For Life.

The charges against Flynn are starting to seem like the charges they used to impeach Clinton. Clinton basically was found not guilty because the questions he lied about should never have been asked in the first place. If Mueller is acting outside of his mandate wouldn’t the same apply to Flynn?

    1. Clinton lied under oath, in a deposition taken (for his convenience) before a Federal Judge who came to Clinton to take the Deposition, about a material fact which had bearing upon the civil suit filed by Paula Jones.

    2. Paula Jones filed suit for actions he allegedly took before being elected President. In response to his claim that the President is immune to civil suit, the Courts ruled that the President has no immunity for actions he took while not President.

    3. As to your claim that the question to which he falsely testified should not have been asked, Clinton was, at the time, still a member of the Bar, had been a law school instructor at the university level and had his attorney(s) present. Even if, hypothetically, the question was not material to his history of extra-marital sexual activity (and/or he believed that was not material to the Jones claim), he (or his attorneys) could have raised that issue at the time rather than falsely testifying. Materiality was not questioned at the time the question was asked and you have no grounds to challenge materiality at this late date. He filed his plea with the Court, paid his fine, settlement and surrendered his law license long, long ago. That the Democrats and GOPe wouldn’t convict doesn’t say as much about his guilt as his plea before the Judge.

Emil de Blatz | December 3, 2017 at 9:38 pm

My question is this:

How is it possible for there to have been an obstruction of justice when there was no deviation in process from before the alleged intervention to after the alleged intervention? In other words – what is it that Trump obstructed? Investigations were going on before he fired Comey, they continued after he fired Comey. In fact, they only intensified with the appointment of a Special Counsel. Comey himself was the executive in charge of the FBI, he was not a field investigator. Fire him, and the real work of the FBI does not skip a beat.

Likewise the press was wetting the bed over the news that Trump repeatedly asked GOP Senators over the summer to bring the investigations to an end. Have these journalists never learned about the separation of powers? Trump could ask the Senate all day long to curtail an investigation, he can only ask, he has no power to direct or command another branch of government what to do, how to operate, what to investigate and for how long.

Sounds like the answer is to fire Rosenstein. Seems to be “The man” and Mueller is his lackey going after trump.

Bitterlyclinging | December 4, 2017 at 6:50 am

Bob Mueller has turned his legion of Trump Hunters into an 1850’s style slave hunt, complete with horses, dogs…
Mueller will not depart the national scene until election day 2024, unless he manages to take down Donald Trump before that or…..
Imagine an American President dogged by a prosecutor one step behind him at all times, outside his door when he goes to bed, outside the door of any and all meetings with the ability to demand and receive transcripts of any and all conversations whenever and wherever they took place, his actions only circumscribed by orders out of Kalorama.

You quote “(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.”

Doesn’t this give Ferris Mueller the appropriate authority?

    Edward in reply to Oxbay. | December 4, 2017 at 8:18 am

    No. What that means is if the investigators, while interviewing a person, or reviewing documents, are given a lead to/find evidence of another crime the investigation can expand scope to include that crime. It isn’t “Hey, here’s a great idea – Trump has had businesses for decades – let’s go wander through his business records to see if we can find evidence of some crime.”

    In fact the appointment of a Special Prosecutor is supposed to be dependent on knowledge of a crime having been committed which DoJ is unable to prosecute (for whatever reason) and the Special Prosecutor is appointed to investigate that crime. Mueller’s appointment has no reference to any specific criminal act or even belief that a crime has been committed. He was sent on a fishing expedition, at best an intelligence gathering investigation, which does not comport with the law involving appointment.

Constitution First | December 4, 2017 at 7:27 am

It is disgusting what our Republic has metastasized into. Our Founding Fathers are spinning in their graves. The Tree of Liberty is thirsty. Very Thirsty.

The charges are signed by a Muslim and an Obama contributor (has no one else noticed?), concern an attempt to thwart Obama’s stabbing Israel in the back by failing to veto the UN resolution, and are outside the authorized substantive scope of the investigation. The failure to veto the UN resolution was anti-Semitic and so is the targeting of Mr. Kushner.

This was a set up from the beginning and the Republicans were part of it. I can’t wait until Mueller figures out he hasn’t done enough to justify all the money he’s wasted and has to try and have a show prosecution of someone in the attempt to cover that up.

    Edward in reply to bflat879. | December 4, 2017 at 8:21 am

    He already knows, and just like Fitzgerald, doesn’t care. He knows he will get at least one scalp (already has a couple in fact, though they have avoided being taken before a DC Jury for their conviction).

Kind of surprised no one’s commented on the elements of the ‘false statements’ charge against Flynn which clearly include the requirement the ‘false statement’ concern “a material fact” or the statement must be “materially false”. In other words just like the federal perjury law the federal false statements law requires the statement be material. If you tell the FBI the sky is blue and it’s raining, 18USC1001 doesn’t apply.

Here’s the relevant part of the law:
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or

Mueller was charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

So, it’s right in the wheel house to to investigate whether coordination during the campaign led to a payback or quid pro quo during the transition and after the President took over.

CIA, FBI and NSA have determined that the Russian government was behind the hacking of DNC and Podesta emails as well as the hacking of state voter databases. There is evidence of contacts between the Trump team (Don Jr emails & meeting at Trump Tower, Don Jr contacts w/ Assange, Manifort, Papdopoulos, Carter Page, others). Thus Mueller must determine whether those meetings and contacts were part of a conspiracy to provide help to the Trump team in return for lifting of sanctions, including rescission of Magnitsky Act sanctions and whether the quid pro quo was delivered or to be delivered after the election.

If there was a conspiracy, it would have continued until one or the other party (or parties) withdrew from the conspiracy. So Mueller would be authorized to investigate the Trump team’s conduct during the transition period and into the presidency.

At a minimum, Mueller is required to follow the leads to see where they lead.

    DaveGinOly in reply to jrterrier5. | December 5, 2017 at 12:44 am

    In order for Trump and his team to make good on their part of the bargain, there has to be a bargain. Mueller can’t find an action of the transition team or the administration that’s favorable to Russia and say “That’s it!” without also finding the Russian assistance that the favorable action is paying for. So far, I’ve not seen a single credible (or even an incredible) scenario in which the Russians could have affected the election (intentionally) in Trump’s favor. Remember, Russian “hacking” of the election was first meant literally – that the Russians somehow altered poll results. That was quickly dismissed and “hacking” eventually mutated into “collusion”, with absolutely no evidence that any such thing happened. If there’s no proof that there was “collusion”, nothing that occurred later, no matter how favorable to the Russians, can be considered a payoff. (Just as without the sale of Uranium One a massive influx of Russian money into the Clinton Foundation would be meaningless.)

I sent a message to Atty Gen Sessions telling him that, although he has recused himself from the Trump/Russia collusion matter, he has the authority to direct his Deputy Rosenstein to direct Mueller to confine his investigation to the Trump/Russia Collusion and wrap it up once this has been completed. Any problem you see with this?

The Demon Slick | December 4, 2017 at 6:37 pm

Why is Mueller appointed at All? The special counsel statute is only for a criminal investigation. NOT a counterintelligence investigation, which Comey said it was. To trigger the special counsel statute first you must identify that a crime has occurred. Otherwise how would you know if it is a criminal investigation? What crime was Mueller appointed to investigate? Mueller and McCabe are clearly in violation of the special counsel statute.