Rosenstein-Mueller scope memo: Probe Russia collusion we kinda already know didn't exist

Perhaps Adam Schiff shouldn’t be alone in panicking over increasing scrutiny into the debunked Russia-collusion conspiracy theory. After a long fight over the authorizing document for Robert Mueller’s scope in his special-counsel probe, the Department of Justice has finally released a redacted version of Rod Rosenstein’s supplemental authorization from August 2017. Issued three months after Rosenstein’s initial appointment of Mueller and authorization, this memo intended to fix some structural defects of Rosenstein’s initial authorization.


In retrospect, perhaps Rosenstein should have used that intervening time to narrow the scope rather than broaden it — or just dismiss Mueller altogether:

The Justice Department has released a largely unredacted copy of former acting Attorney General Rod Rosenstein’s 2017 memo laying out the scope of former Special Counsel Robert Mueller’s investigation, offering a previously unseen glimpse into how the Russia probe was framed. …

The memo, dated as being sent on August 2, 2017, and written to Mueller when Rosenstein was serving as deputy attorney general, specified five people that he was permitted to investigate: Carter Page, Paul Manafort, Michael Flynn, George Papadopolous and one other whose name was redacted.

In the case of Carter Page, Mueller was to probe allegations that he committed a crime by colluding with Russian government officials with respect to their efforts to interfere in the 2016 election.

Regarding Manafort, Mueller was tasked with looking into whether he colluded with Russia in their 2016 election interference, as well as regarding his work in Ukraine and whether he committed a crime by taking loans from a bank CEO who was pursuing a job at the time with the Trump administration.

The same allegations regarding Russian collusion were to be answered by Mueller regarding George Papadopolous, although Mueller was also asked to look into whether Papadopolous was an unregistered agent to the Israeli government.


Read the memo here, but it’s about as dry as the New York Post’s prose above. The reason that Rosenstein had to issue this memo is because his first memo was outside the scope of the special-counsel statute, as Andy McCarthy wrote two years ago. Rosenstein had defined Mueller’s mission as the continuance of James Comey’s investigation of the 2016 election, but that was explicitly a counterintelligence operation, not a criminal investigation:

From the outset, I protested that Rosenstein’s order appointing Mueller violated governing special-counsel regulations. They make the trigger for such an appointment the existence of a “criminal investigation of a person or matter,” which some conflict of interest prevents the Justice Department from conducting in the normal course — requiring that an attorney from outside the U.S. government be assigned to conduct the criminal investigation (see 28 CFR Sections 600.1 and 600.3). To the contrary, Rosenstein’s order disclosed no basis for a criminal investigation and indicated no crimes that had allegedly been committed.

Instead, the deputy attorney general assigned Mueller to conduct a counterintelligence investigation. To wit, Rosenstein defined the probe as “the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” In that testimony, Comey had quite explicitly confirmed a counterintelligence probe: “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” (emphasis added).


All that Rosenstein appears to have done is to slap language onto his original order to give Mueller the scope to investigate “allegations” that various figures “committed a crime” in one fashion or another. One target remains redacted, but the other targets are those listed by the NYP: Carter Page, George Papadopoulos, Michael Flynn, and Paul Manafort. Of these four, two got pushed into guilty pleas for lying to investigators in increasingly suspicious circumstances, one (Manafort) got convicted on charges that the DoJ had been holding for years, and Page ended up being vindicated in the end.

Especially in the case of Page, the basis for the “criminal” investigation had to be the Steele dossier. The FBI didn’t have anything else, and by the time that Rosenstein wrote this memo, they had plenty of reason to be skeptical of it. In fact, by that time, the FBI had begun a counterintelligence operation aimed at Christopher Steele’s sources, according to the report written by Inspector General Michael Horowitz:

Details in the footnotes reveal the FBI knew the dossier wasn’t credible before applying for FISA renewals on at least one Trump campaign official. This information was also known before the appointment of Special Counsel Robert Mueller. Adding insult to injury, Russian intelligence officials were aware of Steele’s investigation into the Trump campaign in July 2016. This information helped Russia with disinformation campaigns against the United States. …

Further, the “FBI had open counterintelligence case on Steele’s key source, but failed to apprise the FISA Court” and “despite repeated warnings of tainted evidence, FBI continuously sought FISA renewals.”

“As we can see from these now-declassified footnotes in the IG’s report, Russian intelligence was aware of the dossier before the FBI even began its investigation and the FBI had reports in hand that their central piece of evidence was most likely tainted with Russian disinformation,” Senators Grassley and Johnson said about the confirmed revelations.


Instead of acting on this information, Rosenstein issued this cover-your-ass memo to fix the fatal defect that McCarthy had earlier pointed out. That saved Mueller from having his prosecutions tossed on a foundational basis, but as it turned out, all he got were a couple of process crimes and an easy conviction on Manafort that the DoJ never bothered to pursue when it developed the case. Mueller also kept mum about the utter nonsense of the Russia-collusion conspiracy theory until the bitter end even when it was immediately apparent that it was based on political oppo research that had ended up being a vehicle for Russian disinformation.

One could argue that Rosenstein was caught between a rock and a hard place in August 2017. Had he dropped the probe, Democrats in Congress would have screamed about a cover-up, and Rosenstein couldn’t necessarily reveal the classified information that would have backed up that decision. However, all that shows is just how much of a political hit job the Mueller probe turned out to be.

And that may well be what we will find out in the House Intelligence Committee transcripts, too. If so, Schiff is only one of many who should be very, very worried about what the rest of the country will discover in those troves.

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