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Zeldin: Lawyers had conflict with Russia probe

CNN Legal Analyst Michael Zeldin says that Joseph DiGenova and Victoria Toensing had irreconcilable conflicts that would prevent them from leading Trump's legal team in Robert Mueller's Russia probe.

Posted: Mar 30, 2018 8:30 AM
Updated: Mar 30, 2018 8:33 AM

Recent criticism of the appointment of Special Counsel Robert S. Mueller by Alan Dershowitz and Ken Starr, among others, appears to have created some confusion about the reasons for Mueller's appointment and what specifically is within his investigative mandate.

As the investigation seems to be moving forward at a fast pace and in several directions, it may be helpful to take a step back and recall why Deputy Attorney General Rod Rosenstein appointed Mueller in the first place, what Mueller is charged with doing, and why it is in the public interest for his investigation to proceed to its conclusion.

The reasons for appointing a special counsel

Professor Dershowitz agrees that a "broad and open investigation of Russian involvement in our elections" should be conducted. He believes, however, that a special counsel should never have been appointed because "there was no evidence of any crime committed by the Trump administration." Starr, on the other hand, believes that while Mueller is handling the probe in a professional manner and that his investigation is not a witch hunt, its focus should only be on what happened during the 2016 election in terms of collusion, as that is the "key idea."

These perspectives reflect a misunderstanding of the legal rationale underlying the special counsel regulations generally, and/or disregard the full scope of Mueller's investigative mandate.

The Code of Federal Regulations, 28 C.F.R. Section 600.1, establishes the grounds for appointing a special counsel. It provides:

  • The attorney general -- or, in cases in which the attorney general is recused, the acting attorney general -- will appoint a special counsel when he or she determines that criminal investigation of a person or matter is warranted, and
  • (a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
  • (b) That under the circumstances, it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter.

Rosenstein appointed Mueller given the unique circumstances presented by this case -- the events surrounding and including the presidential removal of National Security Advisor Michael Flynn on February 13, 2017, and the activity leading up to and including the firing of FBI Director James B. Comey on May 9, 2017, in the midst of an FBI counterintelligence investigation into the 2016 presidential election.

Rosenstein determined that to "ensure a full and thorough investigation of the Russian efforts to interfere with the 2016 presidential election," the public interest required him to place the investigation under the authority of a person who would be able to exercise a degree of independence from the normal Department of Justice chain of command.

Mueller's mandate

In his order appointing Mueller on May 17, 2017, Rosenstein authorized the special counsel to conduct the investigation into the Russian government's efforts to interfere in the 2016 presidential election confirmed by then-FBI Director Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017 and related matters.

On March 20, Comey testified that, "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, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed."

Included within Mueller's overarching counterintelligence mandate is the investigation of:

  1. any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
  2. any matters that arose or may arise directly from the investigation; and
  3. any other matters within the scope of 28 C.F.R. § 600.4(a), i.e., any federal crimes committed in the course of, and with intent to interfere with, the special counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

The mandate also provides the special counsel with the authority to prosecute federal crimes arising from the investigation of these matters, if he believes it is necessary and appropriate.

At the conclusion of his work, the special counsel is required to provide the attorney general with a report explaining the prosecution or declination decisions he reached, according to 28 C.F.R. 600.8.

Thus, Mueller was appointed to carry on a pre-existing counterintelligence investigation that included, among other things, determining whether there was interference by the Russian government in the 2016 presidential election and, if so, whether there was any coordination with the Trump campaign.

Contrary to Dershowitz's view, the regulations governing the appointment of a special counsel do not require the Trump administration to have committed a crime. Indeed, much of what Mueller has been authorized to investigate predates Trump's inauguration.

How Mueller appears to be carrying out his mandate

1. Potential Russian interference in the 2016 presidential election

The counterintelligence investigation aspect of Mueller's work to date that is publicly known principally involves an investigation into the actions of parties outside of the United States, e.g. the Russian government or persons who may be associated with the Russian government, to interfere in the 2016 presidential election.

One aspect of this interference was outlined in the multi-count indictment returned by Mueller this past February. The indictment charged 13 Russians and 3 Russian corporations with a conspiracy to defraud the United States through the use of social media platforms (Facebook, Instagram, etc.) to influence voter opinion against presidential candidate Hillary Clinton and in favor of candidate Trump. The second aspect, which is still under investigation, is believed to involve the hacking of the Democratic National Committee's computers and of Clinton campaign chairman John Podesta's emails.

2. Potential cooperation/association with the Russian government

Secondary to this primary counterintelligence objective is the question of whether anyone associated with the Trump campaign cooperated -- knowingly or unknowingly -- with the Russian government or persons associated with the Russian government.

Again, while no one has been charged with any criminal conduct, interest has focused on whether the Trump campaign's data analytics operation and the data research firm Cambridge Analytica potentially coordinated with a Russian social media campaign or others to influence the presidential election.

Similarly, were Mueller able to determine who hacked the DNC's and/or John Podesta's computers, he then would look to see if any individuals associated with the Trump campaign potentially conspired to receive, use and/or distribute the hacked information.

And, while former Trump national security adviser Michael Flynn and former Trump campaign foreign policy adviser George Papadopoulos each pleaded guilty to one count of making false statements, the underlying conduct that gave rise to their broader cooperation agreements may address cooperation/conspiracy with foreign nationals.

3. Matters potentially arising out of the investigation

Beyond the counterintelligence and coordination aspects of the investigation, Mueller is authorized to investigate any other matters that arose, or may arise directly, from the investigation. These matters are referred to as the "arises out" of aspect of his mandate.

The indictments of Paul Manafort, Trump campaign chairman, and Rick Gates, deputy campaign adviser, for money laundering, tax evasion and foreign registration act violations, as well as the plea agreements by former Skadden attorney Alex van der Zwaan (one count of making false statements) and California businessman Richard Pinedo (one count of identity fraud), would appear to fall within this column.

The grand jury subpoena reported to have been served by Mueller on the Trump organization also may relate to an investigation of matters not directly tethered to the counterintelligence/coordination investigation, but which may fit within the "arises out" aspect of the Mueller mandate.

4. Potential obstruction/interference in the investigation

Finally, Mueller is empowered to investigate whether, during the investigation, anyone endeavored to interfere with or obstruct his investigation. This potentially could include any conduct to interfere with or obstruct the FBI's investigation following former FBI Director Comey's March 2017 testimony.

The investigation of obstruction/interference is not straightforward, especially when it comes to the actions of President Trump. The publicly available information appears to focus on events, such as the firings of Comey and Flynn, Donald Trump Jr.'s potentially misleading statements describing the June 9, 2016 Trump Tower meeting with certain Russians, and any possible efforts by the Trump administration to have the intelligence community push back against the FBI investigation.

Conclusion

The 2016 presidential election was unprecedented. The allegation that the Trump victory may have been achieved, in part, with the possible help of foreign nationals working in a coordinated way with Trump campaign officials is very serious.

Understanding what, if anything, occurred is of paramount importance to the nation. For this reason, the appointment of a special counsel with a broad mandate was warranted. In the interests of justice and the public interest, Mueller should be allowed to complete his work without executive or legislative branch interference.

Only when his final report is released will we know all the facts: who, if anyone, participated; what their level of responsibility was; and, most importantly, how we can prevent interference in our elections in the future.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 595436

Reported Deaths: 9466
CountyCasesDeaths
Marion822851311
Lake44626670
Allen32165543
Hamilton28684308
St. Joseph26917378
Elkhart24173343
Vanderburgh18856236
Tippecanoe17638125
Johnson14687289
Porter14513163
Hendricks14010242
Madison10715216
Vigo10540177
Clark10349135
Monroe9189108
Delaware8956134
LaPorte8867158
Howard7982140
Kosciusko791380
Warrick652994
Hancock646999
Bartholomew631096
Floyd6205107
Wayne5984159
Grant5874110
Dubois547175
Boone538867
Morgan524192
Henry497764
Marshall495384
Cass475362
Dearborn464545
Noble463157
Jackson417846
Shelby405680
Lawrence383876
Clinton367840
Gibson360058
DeKalb339163
Montgomery338152
Harrison333643
Knox329839
Miami312743
Steuben309343
Adams297435
Whitley297225
Wabash294947
Ripley294345
Putnam288047
Jasper285234
Huntington284959
White269138
Daviess263073
Jefferson253838
Decatur243482
Fayette242948
Greene237062
Posey234427
Wells231347
LaGrange225061
Clay219032
Scott218538
Randolph209845
Jennings193935
Sullivan189632
Spencer184319
Fountain180527
Washington179321
Starke172743
Jay163922
Fulton161130
Owen161137
Carroll153915
Orange152933
Rush151618
Perry149327
Vermillion145833
Franklin144433
Tipton129232
Parke12918
Pike114326
Blackford109222
Pulaski95337
Newton89821
Brown85931
Benton85310
Crawford7719
Martin70713
Warren6637
Switzerland6235
Union6146
Ohio4727
Unassigned0374

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 836049

Reported Deaths: 10323
CountyCasesDeaths
Franklin98533705
Cuyahoga831801065
Hamilton61931441
Montgomery42028399
Summit33849736
Lucas30524605
Butler30003228
Stark25093419
Warren19083140
Lorain18418212
Mahoning16931337
Lake15592136
Clermont15335105
Delaware1403077
Licking12819132
Trumbull12515307
Fairfield1232480
Greene11729135
Medina11286165
Clark10672264
Wood10081156
Allen9639126
Portage9006107
Miami895273
Richland8910116
Marion7377113
Tuscarawas7177174
Columbiana7164124
Pickaway710350
Wayne6855165
Muskingum678241
Erie5976118
Hancock542990
Ross535287
Scioto527063
Geauga491755
Darke459489
Ashtabula443172
Lawrence439353
Union437028
Sandusky427462
Mercer427387
Seneca417357
Auglaize416259
Huron416138
Shelby413521
Jefferson409066
Belmont403740
Washington375940
Putnam367872
Athens36759
Madison343429
Knox340122
Ashland336838
Fulton328543
Defiance322578
Crawford316371
Preble313836
Brown298819
Logan296529
Ottawa283934
Clinton281243
Williams272866
Highland266018
Jackson259043
Guernsey245325
Champaign244427
Fayette229729
Morrow22574
Perry223318
Holmes220362
Henry213547
Hardin206433
Coshocton199620
Van Wert198744
Wyandot192549
Gallia192126
Adams167415
Pike167417
Hocking165523
Carroll151316
Paulding141121
Noble118740
Meigs105021
Monroe97229
Harrison8598
Morgan79728
Vinton67613
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