Can Mueller Do That? Inquiry Now Crosses Trump’s ‘Red Line’By
Special counsel said to probe real estate deals, Miss Universe
Authority given to probe ‘any matters that arose’ from inquiry
Despite what President Donald Trump and his lawyers say, the U.S. special counsel investigating possible ties between the 2016 campaign and Russia appears to have ample authority to examine a broad range of activities involving Trump’s businesses.
This became newly relevant this morning when Bloomberg News reported that Special Counsel Robert Mueller’s investigation also encompasses dealings such as Russian purchases of apartments in Trump buildings, Trump’s involvement in a controversial downtown New York hotel development with Russian associates, the 2013 Miss Universe pageant in Moscow, and Trump’s sale of a Florida mansion to a Russian oligarch in 2008. The source was a person familiar with Mueller’s probe.
Just yesterday, in an interview with the New York Times, Trump said that Mueller would cross a “red line” if he looked into such affairs. Pressed by the Times, Trump said that investigating his and his families’ financial dealings would be a “violation” of the mandate for the probe. Asked repeatedly whether he would try to fire Mueller, the president finally responded: “I can’t answer that question, because I don’t think it’s going to happen.”
Well, it’s happening, and Mueller isn’t exceeding his mandate.
Mueller’s appointment on May 17 by Rod Rosenstein, then the acting U.S. Attorney General and now the Deputy Attorney General, included an extraordinarily broad mandate to look into “the Russian government’s efforts to interfere in the 2016 presidential election.” To do that, Rosenstein specified three areas that Mueller has authority to investigate. The first is “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
The second category is the critical one establishing the mission’s open-ended nature. He has authority to investigate “any matters that arose or may arise directly from the investigation.” And as if that weren’t enough flexibility, Rosenstein added the power to probe “any other matters within the scope of 28 C.F.R. section 600.4(a).” That’s the Code of Federal Regulations, which says the jurisdiction of a special counsel includes “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.”
Legal experts agree that Mueller’s mandate is extraordinarily broad. Julie O’Sullivan, a former federal prosecutor who teaches law at Georgetown University, says that the Rosenstein document “could certainly be read to authorize investigation of non-Russia-related wrongdoing that is uncovered during the course of a legitimate inquiry into the Russia question.”
Jonathan Turley, a law professor at George Washington University, calls the Rosenstein mandate “remarkably broad” and “surprisingly ambiguous,” giving Mueller plenty of latitude. Even very narrowly defined special-counsel probes “tend to broaden naturally with time,” he adds.
Unsurprisingly, Trump’s lawyers disagree. The business transactions in question “are in my view well beyond the mandate of the special counsel,” John Dowd says via email. Dowd adds that the financial dealings cited in the story are “unrelated to the election of 2016 or any alleged collusion between the Trump campaign and Russia.”
“Most importantly,” Dowd says, the transactions “are well beyond any statute of limitation imposed by the United States Code.”
In general, federal crimes have a five-year deadline for investigations, so financial wrongdoing in the 2000s would would be time-barred, Georgetown’s O’Sullivan notes. “But if a conspiracy of some sort is charged, the statute of limitations does not run until the last overt act taken to further the conspiracy takes place.”
What constitutes an “overt act”? It can be something as superficially innocent-seeming as attending a meeting or making a phone call, so long as it’s done by a co-conspirator to further or conceal the conspiracy.
Finally, let’s not forget false statements. It’s a federal felony to lie to a FBI agent or a grand jury—about virtually anything. That could lead to criminal liability if it were intended to cover up past business dealings that might themselves be beyond a prosecutor’s reach because of the statute of limitations.
So in the end, the false-statement statute could present the most peril to the president, his family members, and their associates. In Trump’s case, his freewheeling use of Twitter illustrates a tendency to shoot from the hip that can be dangerous in the middle of a federal investigation.