It’s interesting that we are seeing the argument pop up more often now. When I first advanced it, there was a very specific purpose. The federal regulations governing when (a) a “special counsel” should be appointed, and (b) a Justice Department lawyer (including the attorney general) is disqualified from participation in a matter, do not apply unless conduct occurs that warrants a criminal investigation — i.e., there needs to be a crime. Because special counsels (or their precursors, special prosecutors and independent counsels) can so undermine an administration’s capacity to govern, I was arguing that, in the absence of some solid evidence that a crime had been committed, there was no basis in law to appoint one.
Deputy Attorney General Rod Rosenstein identified the counterintelligence investigation of Russia’s interference with the election (the “Russia investigation”) as the trigger for the special counsel appointment. But a counterintelligence probe is not a criminal investigation. It is an inquiry into the actions and intentions of a foreign power, and is not premised on a crime’s having been committed.
Similarly, the Russia investigation was not a basis for Jeff Sessions to recuse himself. Here, I note that Sessions’s premature decision to recuse, in the absence of a criminal investigation, has had momentous consequences — e.g., the Justice Department permitting then-Director Jim Comey’s March 20 testimony that announced an investigation into Trump collusion with Russia without clarifying that Trump was not a suspect; and Rosenstein’s appointment of Robert Mueller as special counsel despite the absence of basis for a criminal investigation.
Now that Mueller has been appointed and Sessions has recused himself, it could be argued that it is pointless to keep repeating the argument about the lack of an underlying crime. But I disagree. One of the reasons the regs call for a criminal investigation before a special counsel is appointed is to impose some parameters on what the special counsel is permitted to investigate. If Mueller’s jurisdiction is not tied to specific transactions in which it is reasonably suspected that an identifiable criminal offense was committed, then there are no limits on him. Practically speaking, a counterintelligence investigation does not impose any limits on an investigator — it is an information-gathering exercise, not the collection of evidence with an eye toward prosecuting a particular offense. Without limits, Mueller’s investigation is a fishing expedition in the nature of a general warrant: a prosecutor with an unlimited budget, significant autonomy from DOJ and no judicial oversight, sicced on one target to keep looking for something incriminating.
So, I think it is important to keep pointing out that collusion with Russia is not a crime because (a) Rosenstein should supersede his current directive and specify what transactions and suspected crimes Mueller is permitted to investigate; (b) if that does not happen, it may become necessary at a certain point to question the legitimacy of Mueller’s investigation and the need for it to continue. It is one thing to tolerate the damage an investigation necessarily does to an administration if there are real crimes involved; it would be ludicrous to abide it if there are not.
There are also continuing questions about the scope of Sessions’s recusal. It is thus worth continuing to point out that the recusal was unnecessary because it was not predicated on a criminal investigation. The fact that Sessions stepped back from the “Russia investigation” in an abundance of caution does not mean his ability to function as AG should be questioned. (Recall that there was controversy over whether he should have participated in the deliberations over Comey’s firing. The FBI director is one of the AG’s most important subordinates; if the AG cannot weigh in on how and by whom the FBI is run, he can’t functionally be AG.)
It is very true that if campaign collusion with Russia happened, it would be very damaging for Trump. I’ve been arguing that if there was collusion with Russia, it would be beside the point whether a prosecutable crime occurred; collusion would probably be an impeachable offense. But I have to say “probably” because it would depend on the nature of the collusion.
Impeachment-and-removal is a political remedy (not a legal one) premised on the unfitness of the official for the responsibilities of the office. With that in mind, I agree that if Trump were found to have colluded in Russia’s interference with our election process in a meaningful way, impeachment would be automatic — I would certainly support it under those circumstances. On the other hand, some of the asinine things that have been suggested as collusion (e.g., Trump joking that he hoped Russia had and would release the thousands of emails Hillary Clinton withheld from the State Department) are too trifling to be regarded as meaningful or impeachable.
The term “collusion” has been bandied about in a fast-and-loose way. I continue to think there is merit in pressing people on exactly what they mean when they make a “collusion with Russia” claim. And for the legal reasons that apply to the scopes of Mueller’s jurisdiction and Sessions’s recusal, I still think it’s worth pointing out that “collusion with Russia” is not a crime unless the collusion rises to the level of prosecutable conspiracy — i.e., an agreement by two or more people to commit a specified violation of the criminal law.
This column was originally published in National Review.