Mueller Appointment – Annotated DOJ Special Counsel Regulation


A SPECIAL COUNSEL {A DOJ Regulation vice Federal Statute}

§ 600.1 Grounds for appointing a Special Counsel.

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 –

Deputy Attorney General, Rod J. Rosenstein appointed Robert S. Mueller III as Special Counsel on May 17th 2017, via ORDER NO. 3915-2017

{Interesting factoid: Muller was interviewed for Director of FBI by DJT the day before his appointment.  It appears to me that he would have known of his upcoming appointment at the time of his interview.}

Attorney General Jefferson Beauregard Sessions III recused himself from any investigation of Trump Campaign, base on his involvement in the campaign and transition as an advisor, on March 2nd 2017.

(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.

It would appear, but was not cited in the order that paragraph a & b were the justification.

§ 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

The option chosen by Deputy Attorney General, Rod J. Rosenstein.  By implication “the investigation confirmed by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017” provide the necessary “factual inquiry or legal research” referenced in paragraph (b) below.

To the best of my knowledge the only publicly disclosed factual inquiry, by the FBI, was into Russia’s Alfa Bank – Trump Tower e-mail server communications.  An investigation, that may have involved a FISA warrant, by some reports.

The Alfa bank issue was raised by a Slate article  “Was a Trump Server Communicating With Russia?”, which was quickly debunked.  It later showed up in the infamous Trump Dossier, but misspelled the bank as Alpha, and mischaracterized its connection to Putin.

I tend to agree with this synopsis:

The Times reported on October 31 that the FBI examined the server activity and “ultimately concluded that there could be an innocuous explanation, like a marketing email or spam, for the computer contacts.”

The Intercept reported later that the computer analysts who had first noticed the unusual server activity did not respond to questions about “how they can be sure that the majority of DNS look-ups for Trump’s email server originated from Alfa Bank, when much of the data they collected didn’t even include DNS look-ups from IPs described in their own paper.”

“The simplest plausible explanation for all of this: The Trump Organization owns a bunch of expensive, obnoxious spam servers that churn out marketing emails for its expensive, obnoxious hotels,” The Intercept said.

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

§ 600.3 Qualifications of the Special Counsel.

(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking {sic}, and with appropriate experience to ensure both {sic} that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

Robert S. Mueller III, meets all of the enumerated criteria.

(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment, and to ensure that a Special Counsel undergoes an appropriate background investigation and a detailed review of ethics and conflicts of interest issues. A Special Counsel shall be appointed as a “confidential employee” as defined in 5 U.S.C. 7511(b)(2)(C).

If paragraph (b) was adhered to then Robert S. Mueller III would have been interviewed and vetted in the weeks leading up to his appointment.   

Special Counsel Appointment Process (AG recusal)

Either Mr. Mueller was interviewed and vetted, a fact that has not been disclosed or the requirements of paragraph (b) were not followed.  It would be interesting to know Deputy Attorney General answer to the question; “Was Mr. Mueller interviewed and vetted, IAW  CFR-§ 600.3(b) and if so what was the timeline?”

IMHO Mr. Mueller’s interview for Director of FBI is a potential “conflict of interest issue”.   He should have not taken the interview, knowing he was about to be appointed Special Counsel.

Another issue that was apparently investigated by DOJ was his law firm WilmerHale, whose attorneys represent former Trump campaign chairman Paul Manafort, Trump’s daughter Ivanka and Jared Kushner, the president’s son-in-law.

Federal regulations prohibit officials from participating in matters involving their former employers for two years after joining the government unless they receive a waiver to do so.  The waiver was granted ex post facto by Associate Deputy Attorney General Scott Schools.


Note: The waiver was signed by Associate Deputy Attorney General Scott Schools vice the specified Assistant Attorney General for Administration Lee J. Lofthus.

The waiver was release in response to a FOIA request by Politico.  They also report:

  • The agency’s Justice Management Division said it located a two-page “recommendation memorandum” in response to POLITICO’s request but was declining to release that on grounds it would interfere with the deliberative process inside the department.
  • “The memo is protected by the deliberative process privilege (Exemption 5 of the Freedom of Information Act). This is in contrast to the communications related to the Francisco waiver, in which the deliberative discussions were expressly adopted by the decision maker,” the official said.

This has the appearance of being a standard bureaucratic “cover your ass” memo rather than a deliberative process before the appointment.

The Mueller Appointment Process


The timing of the waiver is brought into question by Nancy Pelosi’s press release of May 21st 2017, four days after the waiver was signed.


Evidently Nancy did not follow up and introduce the legislation, a search of using the search term “Mueller” only found a bill (HR 474) by Sheila Jackson, on July 27th 2017,  nine weeks after Nancy’s press release.  HR 474 was not co-sponsored by Nancy.

§ 600.4 Jurisdiction.

(a) Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute 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; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

ORDER NO. 3915-2017 sets forth the jurisdiction established by the Deputy Attorney General:
The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

NB! Mr. Mueller was not authorized to investigate/prosecute obstruction of justice related to Director Comey’s firing.  A stretch could be made to include it under “any matter that arose”.

The “other matters within the scope of 28 C.F.R. § 600.4(a).” relates to interference with the Special Counsel investigation.

(i) above is not a crime, it does not reference any criminal statute.  The obvious question is why was the Special Counsel charged with investigating Russian meddling in the 2016 election.  This would have validated the 13 indictments associated with Internet Research Agency which are not linked to (i) above.

Note Bene!

The charging memo makes no reference to violation of any Federal Law.

(b) Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

Apparently Mr. Mueller asked for and received permission to investigate Paul Manafort and Rick Gates finances prior to the 2016 Presidential campaign.  Mr. Mueller’s indictment against Manafort and Gates contains 12 counts: conspiracy against the United States, conspiracy to launder money, unregistered agent of a foreign principal, false and misleading US Foreign Agents Registration Act statements, false statements, and seven counts of failure to file reports of foreign bank and financial accounts.  All of which predate the campaign of President Donald Trump.

(c) Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.

There is no evidence that Mr. Mueller has sought civil or administrative jurisdiction.

§ 600.5 Staff.

A Special Counsel may request the assignment of appropriate Department employees to assist the Special Counsel. The Department shall gather and provide the Special Counsel with the names and resumes of appropriate personnel available for detail. The Special Counsel may also request the detail of specific employees, and the office for which the designated employee works shall make reasonable efforts to accommodate the request. The Special Counsel shall assign the duties and supervise the work of such employees while they are assigned to the Special Counsel. If necessary, the Special Counsel may request that additional personnel be hired or assigned from outside the Department. All personnel in the Department shall cooperate to the fullest extent possible with the Special Counsel.

Reports of Mr. Muller’s staff include DOJ employees, FBI employees and additional personnel hired or assigned from outside the Department.  Based on the SC’s end of fiscal year report there were 17 attorneys on staff, thirteen plus Mueller have been identified.

  • DOJ employees 
    1. Michael Dreeben – deputy solicitor general overseeing the Department of Justice’s criminal docket
    2. Andrew Weissmann – leader of the DOJ’s criminal fraud unit
    3. Zainab Ahmad – Prosecutor, U.S. Attorney’s Office in Eastern District of New York
    4. Andrew Goldstein – Prosecutor, U.S. Attorney’s Office in Southern District’s public corruption unit
    5. Elizabeth Prelogar – U.S. Solicitor General’s Office
    6. Brandon Van Grack – U.S. Attorney’s Office for the Eastern District of Virginia
    7. Rush Atkinson – DOJ Criminal Division
    8. Adam Jed – DOJ Civil Division
    9. Aaron Zelinsky – U.S. Attorney Office in Maryland
  • FBI employees
    • David Archey – reportedly replaced reassigned Peter Strzok
  • Outside employees
    1. Jeannie Rhee – resigned from the WilmerHale law firm, Mueller’s former firm, to join the investigation
    2. James Quarles – resigned from the WilmerHale law firm, Mueller’s former firm, to join the investigation
    3. Aaron Zebley – resigned from the WilmerHale law firm, Mueller’s former firm, to join the investigation
    4. Greg Andres – resigned from Davis Polk & Wardwell law firm to join the investigation

§ 600.6 Powers and authority.

Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.  Except as provided in this part, the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.

The highlighted sentence above give Mr. Mueller wide latitude as to what he shares with DOJ management.


§ 600.7 Conduct and accountability.

(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures. Should the Special Counsel conclude that the extraordinary circumstances of any particular decision would render compliance with required review and approval procedures by the designated Departmental component inappropriate, he or she may consult directly with the Attorney General.

(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, 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. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3).

The Attorney General, or in this case Deputy Attorney General has the power to shut down Mr. Mueller’s investigation or lines of investigation.

(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Within the regulation, Mr. Mueller may be “removed from office only by the personal action of the Attorney General”.  This appears to nullify the ability of POTUS to fire Mr. Mueller.

§ 600.8 Notification and reports by the Special Counsel.


(1) A Special Counsel shall be provided all appropriate resources by the Department of Justice. Within the first 60 days of his or her appointment, the Special Counsel shall develop a proposed budget for the current fiscal year with the assistance of the Justice Management Division for the Attorney General’s review and approval. Based on the proposal, the Attorney General shall establish a budget for the operations of the Special Counsel. The budget shall include a request for assignment of personnel, with a description of the qualifications needed.

To date the only publicly released budget information was “Special Counsel’s Office Statement of Expenditures May 17, 2017 to September 30, 2017” which reported spending as $3,213,695.00.  In addition it has been reported that DOJ spent $3,500,000 on DOJ operations and would have been spent on its own pre-existing Russia investigations if Mueller hadn’t been tapped to take over in mid-May.

(2) Thereafter, 90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year. The Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.

The FY-2018 budget was due July 3rd 2017.  I have been unable to find any reference to it in public records.  If spending continues at the FY-2017 rate the budget would be $8,625,000.

The following reference is made to Special Counsel’s Office in “U.S. Department of Justice  FY 2018 Contingency Plan” dated: September 8, 2017

Special Counsel’s Office (SCO): The Special Counsel’s Office is funded with a
permanent indefinite appropriation. All direct employees are displayed as excepted positions because their funding is not dependent upon an enacted appropriation.

The SCO has been onboarding staff since its inception on May 17, 2017, and was not fully staffed as of June 24, 2017 (pay period 12). As of July 28, 2017, the SCO will employ nine term employees directly, who are requested to be excepted in the FY 2018 contingency plan based on the exception justification provided above.

(b)Notification of significant events. The Special Counsel shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.

(c)Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

§ 600.9 Notification and reports by the Attorney General.

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action –

(1) Upon appointing a Special Counsel;

(2) Upon removing any Special Counsel; and

(3) Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

(b) The notification requirement in paragraph (a)(1) of this section may be tolled by the Attorney General upon a finding that legitimate investigative or privacy concerns require confidentiality. At such time as confidentiality is no longer needed, the notification will be provided.

(c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

§ 600.10 No creation of rights.

The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.


One thought on “Mueller Appointment – Annotated DOJ Special Counsel Regulation”

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s