Counterintelligence Investigations and the Special Counsel’s Mandate: Part I

Ever since Acting Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as a Special Counsel to investigate allegations of Russian interference in the 2016 election, commentators have raised questions about the investigation’s scope. Some have claimed that the Special Counsel’s mandate is too expansive; others, too narrow; and still others, simply too vague. On Lawfare, the issue has been addressed by Andrew Kent and David Kris. All appear to have assumed, however, that the scope of the investigation will be governed by 28 C.F.R. Part 600, the 1999 regulation authorizing the appointment of a “Special Counsel” that was enacted in the wake of the lapse of the independent-counsel statute.

But does this regulatory apparatus govern the Mueller investigation? I am not so sure. The order appointing Mueller (what I’ll call the “Rosenstein Order”) invokes—and commentators have naturally focused on—the regulations contained in 28 C.F.R. Part 600 (what I’ll call the “Part 600 regulations”), because they expressly authorize the appointment of a Special Counsel. But as I explain below, these regulations do not contemplate the delegation of a counterintelligence investigation to a Special Counsel; they focus on criminal investigations. The two kinds of investigations are significantly different in scope and function and rely on different investigative tools. The Rosenstein Order, however, appears to delegate a counterintelligence investigation to the Special Counsel under the criminal-prosecution-focused Part 600 regulations, thereby creating some confusion on the appropriate scope and type of investigation. By seemingly directing Mueller to conduct a counterintelligence investigation while at the same time limiting his authority to the criminal investigations authorized by the Part 600 regulations, the Rosenstein Order points in different directions on the scope of the Special Counsel’s mandate.

In this post, I will explain why the counterintelligence investigation that Rosenstein appears to have intended to delegate to the Special Counsel is inconsistent with the criminal focus of the Part 600 regulations. The delegated investigation, in short, does not comply with the limits on the Special Counsel’s authority imposed by the regulations. In a subsequent post, I will explain that Rosenstein may delegate a counterintelligence investigation to the Special Counsel under his general statutory authority, 28 U.S.C. § 510. But if he intends to do so, he should clarify that the Part 600 regulations are inapplicable.