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 DOJm 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.