A thousand cuts: How the acting AG could kill Russia investigations without firing Mueller

Nonetheless, the regulations allow two ways for the Acting Attorney General to involve himself in a Special Counsel investigation such as Mueller’s. First, § 600.7 requires the Special Counsel to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” Pursuant to this requirement, it is conceivable that the Acting Attorney General could withhold his approval for any prosecutorial action that requires his express authorization. However, the Justice Manual identifies relatively few prosecutorial actions that require the Attorney General’s approval. Seeking the death penalty is one: the Attorney General must authorize seeking the death penalty in a capital case (JM 9-10.040). In Mueller’s investigations and prosecutions, there are no obvious anticipated steps that would require the express approval of the Attorney General.

Second, § 600.7 of the Special Counsel regulations say that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” It is through this provision that the Acting Attorney General might seek to make the most mischief, but not without relying on patently bad faith interpretations of Department of Justice policy.

The Acting Attorney General could insist that Mueller keep him abreast of all investigative and prosecutorial steps in the ongoing probe and could simply decide that particular steps were “inappropriate or unwarranted under established Department practices” and block them.

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