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

In my first post on this topic, I explained that the Department of Justice’s regulations governing the appointment of a “Special Counsel” (what I have called the “Part 600 regulations”) are a poor fit for the investigation that Acting Attorney General Rod Rosenstein appears to have delegated to former FBI Director Robert Mueller. Those regulations authorize the delegation of a criminal investigation to a Special Counsel and give the Special Counsel the powers of a “United States Attorney”—a litigating official within the Department of Justice who lacks the authority to conduct a counterintelligence investigation. The Order appointing the Special Counsel (the “Rosenstein Order”), however, appears to seek to delegate a counterintelligence investigation, while at the same time declaring the Part 600 regulations “applicable.” The mismatch between the regulatory provisions and the delegated investigation raises questions about the investigation’s purpose and the investigative tools available to the Special Counsel.

In this post, I will address whether the Acting Attorney General may delegate a counterintelligence investigation to a Special Counsel under some authority other than the Part 600 regulations. I believe that he may—subject to certain statutory restrictions—though the issue is a novel one. Specifically, the Attorney General possesses a general authority to delegate tasks within the Department of Justice under 28 U.S.C. § 510, which is best read to permit delegation of the FBI’s and National Security Division’s counterintelligence functions to other attorneys within the Department—albeit limited by provisions requiring statutorily specified officials to approve certain kinds of investigative techniques. Indeed, in the most famous investigation by a Special Counsel following the promulgation of the Part 600 regulations, James Comey (at that time, the Deputy Attorney General) elected not to rely on the regulations to authorize the investigation pursued by Special Counsel Patrick Fitzgerald in the Valerie Plame matter, declaring that his “conferral . . . of the title of ‘Special Counsel’ in this matter should not be misunderstood to suggest that [Fitzgerald’s] position and authorities are defined and limited by 28 C.F.R. § 600.”

This seemingly technical distinction between the sources of authority for the Mueller investigation may have serious, though hard to predict, downstream ramifications. I will explore some of the legal implications below, but it is important to get the law right for its own sake. To prevent any further legal confusion, it would be wise to clarify the Rosenstein Order and to specify the Special Counsel’s jurisdiction with greater precision.