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.

A. Delegation under the Attorney General’s Statutory Authority

Federal statutes grant the Attorney General broad authority to delegate functions within the Department of Justice. At the same time, however, Congress has enacted various provisions limiting the Attorney General’s authority to delegate functions in the specific area of national security. How these statutory provisions interact determines the legality and scope of the Rosenstein Order’s delegation.

Start with the broad and general authority to delegate. Section 510 provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” By statute, with some exceptions not relevant here, “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.” And by statute, the “Federal Bureau of Investigation is in the Department of Justice.”

The Supreme Court has understood statutory frameworks of this nature to allow the head of a Department to “subdelegate” authority to a subordinate within the Department, absent a restriction prohibiting such delegation. In Touby v. United States, for example, the Supreme Court interpreted a statutory provision similar to section 510 as “permit[ting] the delegation of any function vested in the Attorney General . . . unless a specific limitation on that delegation authority appears elsewhere in the statute.” Although courts of appeals (such as the U.S. Court of Appeals for the D.C. Circuit in U.S. Telecom Association v. FCC) have held that this principle does not apply to delegation “outside” a department, Director Mueller has resigned from his law firm partnership and ought not to be considered an “outside” party in the sense in which the term has been used in this context—to refer to state public utility commissions and the like.

In the case of the Rosenstein Order’s delegation of a counterintelligence investigation to Mueller, it is useful to think of two possible sources of limits on the Attorney General’s authority—the first, regulatory, and the second, statutory.

As an initial matter, one might argue that, by providing that the Attorney General may delegate a criminal investigation to a “Special Counsel,” the Part 600 regulations implicitly prohibit the delegation of a counterintelligence investigation. Any violation of this implicit prohibition, the argument would go, is unlawful under the principle (commonly attributed to the Supreme Court’s decision in Accardi v. Shaughnessy) that an agency must follow its own regulations. That argument does not strike me as particularly strong. Even assuming that the regulations could not be waived at will (as a U.S. district court suggested during the Watergate investigation in Nader v. Bork), the Part 600 regulations do not purport to be exclusive or to limit the authority of the Attorney General to delegate investigations outside the regulations’ scope. Rather, the regulations provide one way of appointing a Special Counsel, leaving open the possibility of other institutional arrangements. That is how the U.S. District Court for the District of Columbia (as well as the Comptroller General) understood the scope of the Part 600 regulations in United States v. Libby, noting that the parties did not contend “that the Deputy Attorney General was required to follow these regulations, and they are therefore of no moment.” (In that case, Deputy Attorney General Comey appointed as a special counsel Patrick Fitzgerald, at the time the U.S. Attorney for the Northern District of Illinois, which would have contravened the requirement in the Part 600 regulations that the Special Counsel be “selected from outside the United States Government.”)

The complex statutory scheme that governs the Department of Justice’s national security apparatus, however, raises thornier legal problems. As a matter of background law, Congress may limit a Department head’s general authority to delegate within an agency by enacting specific statutory restrictions. In a leading case on this issue, United States v. Giordano, the Supreme Court held that a provision in the Wiretap Act—which at the time specified that a wiretap application could be authorized by the “Attorney General, or any Assistant Attorney General specially designated by the Attorney General”—did not permit delegation to “the Attorney General’s Executive Assistant” or any other individual within the Department. The government had contended that “merely vesting a duty in the Attorney General . . . evinces no intention whatsoever to preclude delegation to other officers in the Department of Justice.” The Court rejected the government’s contention because it understood the Wiretap Act as “specifically limit[ing]” the Attorney General’s delegation authority to the statutorily designated individual. In doing so, the Court acknowledged that the Wiretap Act did not use “precise language forbidding delegation,” but it concluded that the provision, “fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate.” Because Congress had specified by statute the individuals who would perform certain functions under the Wiretap Act, the Giordano Court held that other individuals within the Department could not perform those functions.

In the case of national security investigations, there are several questions about whether and how Congress has statutorily limited delegation by the Attorney General within the Department. To begin with, the 2006 statute creating the “National Security Division” of the Department of Justice expressly provides that the Division “shall consist of the elements of the Department of Justice (other than the Federal Bureau of Investigation) engaged primarily in support of the intelligence and intelligence-related activities of the United States Government,” including the counterterrorism and counterespionage sections of the Department or successor organizations. As in Giordano (where the Court understood the specific listing of certain officials as implicitly precluding delegation to others), one could understand the statutory provision conferring authority on the National Security Division over “the intelligence and intelligence-related” functions of the Department of Justice as implicitly prohibiting delegation of “intelligence-related” investigations to officials outside of the Division.

One could understand the statute that way—though, on balance, I do not. Several factors distinguish the provision creating the National Security Division from the Wiretap Act provision at issue in Giordano. First, the inference from the statutory text is not as strong: The language of the text speaks of organizing the existing “elements of the Department of Justice.” While there is little reason for the Wiretap Act to list the individuals who can authorize wiretap applications (other than an intention to exclude other individuals within the Department), there are a number of reasons why Congress would have statutorily authorized the creation of the National Security Division—the Department’s first litigating division in nearly half a century—other than an intention to prohibit delegation to other parties. Second, the inference of exclusivity where Congress lists specific individuals (as in the Wiretap Act) seems stronger than where Congress assigns a function to a component of a department. Third, the Court in Giordano focused on the extensive and specific legislative history indicating a congressional intent to preclude subdelegation.

All of this goes to show that the Attorney General may delegate a counterintelligence investigation, writ large, to a Special Counsel outside of the National Security Division. But notwithstanding the general delegation authority, there are certain functions that Congress has by statute specifically lodged in certain Department officials, thereby making their further delegation by the Attorney General impermissible. At a more granular level, Congress has expressly mandated that various national-security investigative techniques must receive authorization from high-ranking Department of Justice officials. FISA, for example, expressly defines “Attorney General” to include solely “the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security.” Likewise, National Security Letters may be requested by the “Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director.” As with the provision of the Wiretap Act at stake in Giordano, these statutes prohibit further delegation within the Department to ensure political accountability over national-security investigations.

To sum up: Acting Attorney General Rosenstein likely has the authority to delegate a counterintelligence investigation to a Special Counsel under section 510, not the Part 600 regulations. But Rosenstein lacks the authority to delegate approval for certain investigative techniques, such as signing FISA applications and issuing National Security Letters, which Congress has made non-delegable by statute.

B. Some Implications and Conclusions

In light of the foregoing, let’s consider both the practical legal consequences for the Mueller investigation in particular, as well as the broader implications for national security and special counsel investigations generally.

First—and concretely—there is a mismatch between the Rosenstein Order’s declaration that the Part 600 regulations are “applicable” to the Special Counsel and the Order’s delegation of a counterintelligence investigation. The appropriate fix, in my view, would be to clarify the Order with a subsequent writing, either by specifying that the Special Counsel possesses solely the authority to pursue a criminal investigation or by specifying that the Part 600 regulations, in whole or in relevant part, do not apply to the investigation. That course would be consistent with then-Deputy Attorney General Comey’s actions, both in his initial delegation of authority and in a subsequent clarification that his “conferral . . . of the title of ‘Special Counsel’ [on Patrick Fitzgerald] in this matter should not be misunderstood to suggest that [his] position and authorities are defined and limited by 28 C.F.R. § 600.”

Absent a clarification, there may be questions about whether the Special Counsel is acting ultra vires and, to the extent that Director Mueller relies on national security investigative tools, whether he has properly invoked them. To be sure, any such concerns are speculative at this stage, and there would also be questions whether the Part 600 regulations’ declaration that they “may not be relied upon to create any rights . . . enforceable at law or equity” precludes any such legal arguments. But were litigation to occur, the uncertain basis for the Special Counsel’s authority could prompt disputes over, for example, whether the “purpose” of any information-gathering under FISA or other related authorities was truly foreign-intelligence-related.

Second—and more abstractly—this analysis highlights the shifting nature of the legal framework for national security investigations. One might ask, in light of the foregoing, whether the authors of the Part 600 regulations, among them some truly impressive lawyers, simply missed the possibility that a future Attorney General might simultaneously delegate both counterintelligence and criminal functions to a Special Counsel. The answer, in my view, is that their intuitions were perfectly appropriate when the regulations were adopted in 1999. At that time, intelligence and law enforcement were separated by a legal “wall,” which was only dismantled following the enactment of the USA Patriot Act in 2001. As the FISA Court of Review later explained, “to avoid running afoul of the primary purpose test used by some courts” to assess the legality of surveillance under FISA, the “wall” “limited contacts between the FBI and the Criminal Division [of the Department of Justice] in cases where FISA surveillance or searches were being conducted by the FBI for foreign intelligence [ ] or foreign counterintelligence [ ] purposes.” (For an excellent discussion of the “wall” and related issues, the reader should turn to sections 10:5 to 10:15 of David S. Kris and J. Douglas Wilson’s National Security Investigations & Prosecutions.) Against that backdrop, the authors of the Part 600 regulations may have seen no need to address a Special Counsel’s jurisdiction over intelligence-related matters, because they may have assumed that no prosecutor would simultaneously perform intelligence-gathering and law-enforcement functions.

Finally, and irrespective of the scope of the Rosenstein Order’s delegation, the foregoing analysis throws into stark relief the unique nature and the unique complications attending an “independent” counterintelligence investigation conducted by a Special Counsel, as opposed to the criminal investigations apparently envisioned by the Part 600 regulations. The regulations seek to create “independence” by limiting the reasons for removal of a Special Counsel to “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” If Director Mueller relies on standard foreign-intelligence investigative tools, however, he will need the approval of the Department of Justice’s political appointees, thereby prompting a level of coordination with other Department personnel that may well be unusual compared to other investigations conducted by independent and special counsels. This point bolsters what others have already suggested—that, in the context of a counterintelligence investigation, the very notion of a Special Counsel’s legal “independence” may be tested. But the lack of “independence” in law does not necessarily mean that the nation will be deprived of “independence”—or more importantly, a fair and just investigation—in fact. For that, however, we will have to rely, not on technical “independence” by statute or regulation, but rather the good faith and probity of the relevant Department of Justice personnel.

This post has been reviewed by the Department of Justice to prevent the disclosure of classified or otherwise sensitive information.