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Are there statutory mandates governing the office of special counsel?
The Department of Justice has scheduled the release of its redacted version of the MUELLER REPORT for Thursday morning. 1/99
Four categories of redactions will be color-coded: grand jury material; information that could affect ongoing cases; “peripheral third parties”; and intelligence-gathering sources and methods. 2/99
Congress (or at least certain of its committees) has “traditionally been given access to” or has “traditionally obtained” all the unredacted materials in the above list except the second. 3/99
Since the matter of the grand jury materials will almost certainly be the one that will be the most controversial and disputed, it behooves us to ask why and under what authority or precedents Congress has “traditionally” been able to obtain or been given access to them. 4/99
We begin by observing that the whole matter pretty much begins with Watergate. 5/99
After Watergate, Congress passed and President Jimmy Carter signed into law the Ethics in Government Act of 1978. The act was a response to the problems that had risen in the Watergate investigation and prosecution. 6/99
The act can still be found in the federal code as 28 U.S. Code § 591-599; however, it was allowed to to expire or “terminate” in 1999. 7/99 tinyurl.com/y457s6jc
It is important to note, however, that 28 USC § 591 et seq. was never formally repealed or replaced by another statute. 8/99
In its place, we have 28 CFR § 600.1-600.10. These are federal regulations that were adopted by the Department of Justice in 1999 when the Ethics in Government Act was allowed to expire. 9/99 tinyurl.com/zxqqv8x
28 CFR § 600.1 et seq. cover some of the territory covered by the corresponding statute (28 U.S.C. § 591 et seq.), but not all of it. 10/99
And this is a problem, because it means that the regulations fail to address many issues concerning the office of the independent counsel that are addressed by the statute. 11/99
(The Ethics in Government Act uses the term “independent counsel.” The terms “independent counsel,” “special counsel,” and “special prosecutor” are synonymous.) 12/99
Unless the provisions of the statute are binding in some way for the DOJ even after their termination, everything that was in the statute that is not in the regulations has become purely discretionary for the attorney general (and his or her president). 13/99
In fact, the regs lack even the force of what the lawyers call “legislative regulations,” which are made a part of the Code of Federal Regulations after the proposed regs have gone through a lengthy process of review and comment. 14/99
A legislative regulation that has undergone this process cannot simply be dismissed by the stroke of a pen: in order to be revoked, it must undergo another process of notice-and-comment rulemaking. 15/99
As George Conway and others have observed, 28 CFR § 600.1 et seq. was issued by Attorney General Janet Reno without having submitted the regulations to the notice-and-comment rulemaking process. 16/99 tinyurl.com/y5y9u2r7
Accordingly, these regulations, as non-legislative regulations, are only matters of “agency management or personnel,” and “agency organization, procedure, or practice.” 17/99
As such, they can be revoked by the attorney general or his or her president, unilaterally, at any time. 18/99
So it is extremely important to recognize that the 1999 regs (28 CFR § 600.1 et seq.) replaced the provisions of the statute (28 USC § 591 et seq.) ONLY for the purpose of 19/99
changing how the office of the independent counsel was set up and by whom and why; who the independent counsel was accountable to; and who could fire the special counsel. 20/99
In 1999, the objections to the statute were that under the statute the independent counsel was politically accountable to no one--not to the attorney general, not to the president, not to Congress, and not even to the judiciary. 21/99
That was because, under the statute, independent counsels like Kenneth Starr operated under the authority and auspices of a special court, which became, in effect, a politically unaccountable fourth branch of government. 22/99
(This special court is referred to in the statute as “the division of the court.”) 23/99
Under the statute an independent counsel like Starr stopped when he decided he should stop, and the statute gave him no guidance about when he should stop. 24/99
So it wasn’t surprising that the Clinton investigations (of which the Starr investigation formed only a part) ran amuck and went on and on, proceeding from one subject matter to another for a total of eight years. 25/99
At the conclusion of the Clinton investigations, which started out with Whitewater and ended up with Monica Lewinsky’s blue dress, 26/99
it was felt by all parties--the Congress, the president, the attorney general, and even Ken Starr himself--that, however well-intentioned the law had been as a response to Watergate, it needed to be replaced with something else. 27/99
And that something else was the regulations in 28 CFR § 600.1 et seq. (which, by the way, were written by Neal Katyal when he was serving under Attorney General Janet Reno). 28/99
But it wasn’t felt, and was never suggested or implied, that EVERYTHING in the statute had to be replaced. On the contrary, the changes made to the statute focused on a certain number of issues. 29/99
First, the regs dropped the special court that the Ethics in Government Act had established, and placed political accountability for the conduct of future independent counsels entirely in the office of the attorney general. 30/99
This was a repeal and replacement that did not in any way curtail or diminish the oversight authority that Congress has over the DOJ, and therefore that it has over the independent counsel. 31/99
On the contrary, because there is no special court under the regulations, the Department is much more directly exposed to Congressional oversight authority now than it was when it was the special court that had oversight authority over the independent counsel. 32/99
(Ken Starr’s “Whitewater” report was sent to Congress by order of the special court, not by the DOJ.) 33/99
The second important point to note is that the regulations did not cover the whole territory that was covered by the statute. 34/99
This could be a grave deficiency, as will become obvious from a comparison of the provisions where the statute speaks but where the regulations are silent. 35/99
For example: What about how the Department handles the independent counsel’s records? Could the attorney general (perhaps at the direction of the president) simply DESTROY the independent counsel’s report and all his evidentiary materials, including grand jury materials? 36/99
Or consider this: What would the legal consequences be if Barr didn’t destroy the Mueller materials, but did refuse to turn them over to the National Archives? 37/99
The AG could not do any of these things under 28 USC § 591(k)(1), which stipulates that: 38/99
But 28 CFR § 600.1 et seq. says nothing about this, and if the regs cover the whole field concerning the office of the independent counsel, then it is discretionary for Barr to either preserve or destroy Mueller’s report and all his records. 39/99
Of course, we know that Barr wouldn’t do this, even if he wanted to. If he did, it would spell the end of the Trump Administration: Barr would be impeached, and Trump would undoubtedly be impeached as well. 40/99
However, impeachment is a POLITICAL response. What about the legal questions such an action would raise? 41/99
In his appearance before the House Appropriations Committee, Barr suggested that one option for Congress would be to ask the D.C. District Court to issue an order for him to hand over grand jury materials to Congress (an order that Barr would have to comply with). 42/99
But this suggestion is odd, because it assumes that a court can issue such an order. But how could it do so, if 28 CFR § 600.1 et seq., a non-legislative internal reorganization regulation, occupies the whole field? 43/99
In order to issue an order, a court must either invoke the Constitution or a statute that has allegedly been violated. But if 28 CFR § 600.1 et seq. occupy the entire field, then there is no STATUTE to support such an order. 44/99
Barr’s suggestion that Congress request an order from the court also appears to be at odds with his own opinion (which he expressed to Rep. Ed Case under some close questioning) that his decisions on this and related matters are DISCRETIONARY, 45/99
because if they are purely discretionary, his actions and decisions would not be subject to court review and could not be the subject of a court order! 46/99
In fact, if the regulations occupy the whole field, the only penalty Barr and Trump could incur if all of Mueller’s work for two years went up in smoke is that they could be impeached for “high crimes and misdemeanors.” 47/99
Even more remarkably, the only recourse Congress or the courts would have if Barr preserved Mueller’s work but refused to turn his report and its underlying evidence over to the National Archives would also be impeachment for “high crimes and misdemeanors”! 48/99
Something has clearly gone off the rails here. Surely, you say, there must be something wrong with the analysis if it leads to such an absurd result. 49/99
And you would be right for thinking so. The reason lies in a rule of statutory interpretation that stipulates that there are no implied repeals. 50/99
Under this rule of statutory interpretation, 28 CFR § 600.1 et seq. repealed and replaced all those provisions of the terminated statute that are inconsistent with the new regulations--51/99
BUT ONLY THOSE. Those provisions that are not inconsistent with the new regulations remain in force. 52/99
The no implied repeal doctrine means that for a provision of a law to be repealed, either it must be expressly repealed, or it must be shown to be inconsistent with a later enactment. 53/99
The Ethics in Government Act (28 USC § 591 et seq.) Is still part of the U.S. code, which means that it is still a U.S. law (enactment), even though it has been “terminated in its effect” (28 USC § 599). 54/99
Laws that have been repealed, or repealed and replaced in their entirety by a superseding law, are deleted from the U.S. Code by Congress’s Office of Law Revision Counsel. This has not happened to 28 USC § 591 et seq.) 55/99
(It appears that laws that have been struck down by the courts are also left in the code by the Office of Law Revision unless and until they are repealed by an act of Congress 56/99
--though a cursory inspection of laws like DOMA tells me that the Office does have a practice of including notes that such laws have been rendered “null and void” by court action.) 57/99
In any event, on the application of the no implied repeals rule of statutory interpretation, Barr would be in violation of a law if he destroyed Mueller’s materials--58/99
and that is a quite different matter, and would have quite different consequences and remedies, from an allegation that he had committed a political crime (“high crimes and misdemeanors”). 59/99
And it would also mean that a court could invoke a statute--specifically, 28 USC § 591(k)(1)--in order to order Barr to turn over grand jury materials to Congress. 60/99
That would show, in turn, that Barr was mistaken in asserting in his Congressional testimony that how he handled the grand jury materials was discretionary. (Barr seems to me to have been unclear and even inconsistent on this point.) 61/99
Since Barr has no intention of destroying Mueller’s materials (and Trump wouldn’t order him to do it for political reasons, if nothing else) much of the foregoing might seem to have been a rather academic exercise. 62/99
But it isn’t, because if Barr must comply with the provisions of the statute that have not been (implicitly) repealed by the regs, then Nadler’s subpoena for the unredacted Mueller grand jury materials will confront Barr with the following three choices: 63/99
either he must comply with the request; join with the House Judiciary Committee to get an order permitting the request; or request that the D.C. District Court (Judge Beryl Howell) quash the request. 64/99
(Note that this argument doesn’t show that Barr must necessarily comply with Nadler’s request. It only shows that, if Barr doesn’t request a court order to quash, 65/99
he will be compelled by the request to EITHER comply or to request PERMISSION from the court to comply--something he has so far refused to do.) 66/99
Here is the provision of the statute--which has been terminated, but as I have argued above, must still be valid in its unrepealed parts--that shows that Barr’s discretion is limited to the above three options: 67/99
28 USC §595(c): Information Relating to Impeachment: 68/99
Barr spoke at the Congressional hearings the other day about having to comply with Department rules and guidelines. 69/99
Congress has not asked him to specify what these rules and guidelines are (it should)-- 70/99
but in any event there is some reason to think that Barr himself believes that unrepealed sections of 28 USC §591 et seq. have been incorporated in some fashion or other into the Department rules and guidelines and that he regards them as controlling for the Department. 71/99
There are at least three reasons for thinking so. 72/99
(1) The report that Mueller has submitted (to judge from Barr’s description of it) does not resemble the one that is described in 28 CFR §600.8(c), which simply says: 73/99 tinyurl.com/y64dh55f
Compare this with 28 USC § 591(h)(1)(B): 74/99
Note that the statute mandates a far more extensive report from the independent counsel than does 28 CFR §600.8(c). The statute, but not the regulation, requires him to set forth “fully and completely a description” of his work. 75/99
And that appears to be exactly the kind of report that Mueller has written and submitted. (It’s hundreds of pages long, according to Barr.) 76/99
The only difference between the statute and the Department regulations in this respect 77/99
is that the “division of the court” (the special independent counsel court) no longer exists, with the result that the independent counsel turns in his report to the attorney general instead. 78/99
(2) 28 USC §595(c) helps explain why Mueller declined to reach a determination about whether Trump obstructed justice (which Barr tells us in his four-page letter that Mueller did not do). 79/99
According to Barr, Mueller has said that his findings do not “exonerate” Trump either. 80/99
Many commentators have speculated that this means that Mueller felt (rightly) that, given the findings, this was a determination for Congress alone to make.

28 USC §595(c) supports that view. 81/99
The first sentence of §595(c) (see above) makes it clear that under the statute the independent counsel’s first responsibility is to the House of Representatives, NOT TO THE ATTORNEY GENERAL, 82/99
to report any substantial and credible information that may constitute grounds for an impeachment. 83/99
§595(c) directs the independent counsel to advise the HOUSE OF REPRESENTATIVES on any question of impeachment arising from the investigation’s findings, 84/99
which is quite different from the direction of 28 CFR §600.8(c), which directs the special counsel to report on the declination and prosecution decisions he has made in the course of his investigations. 85/99
Mueller’s decision to not reach a determination about obstruction of justice does not really comport with the directives of §600.8(c), but is fully consistent with the directives of §595(c). 86/99
This provides further evidence that Mueller, with the agreement and maybe even under the direction of Rosenstein, has followed the letter and spirit of the statute rather than the Department regulations in his respect as well. 87/99
(3) Mueller and the Department are following §594(k)(1) in another respect that is worth noting: 88/99
Custody of Records of an Independent Counsel; #594(k)(1) transfer of records
“(1)Transfer of records.— 89/99
That, too, is being done by Mueller, presumably pursuant to the statute (and not the regulations, which say nothing about this). 90/99
APPENDIX: 91/99
PS 1/ Barr has claimed that he cannot comply with a request (which is certain to turn into a subpoena within days) from the House Judiciary Committee to turn over Mueller’s grand jury materials to Congress unless he is given permission to do so by the court. 92/99
PS 2/ I have argued at some length in a previous posting that Barr’s refusal is probably based, at least in part, on a misreading of McKeever v Barr (see especially at tweet 45 et seq.) 93/99 tinyurl.com/y4vh2loe
PS 3/ I have realized since then that I can strengthen the argument I made in my previous posting by citing the precedent of Nixon v. United States, 506 U.S. 224 (1993). 94/99 tinyurl.com/y65zwkze
PS 4/ In that case the Supreme Court decided that the manner in which the Senate conducted an impeachment trial was a purely political question and therefore non-justiciable--that is, not subject to court review. 95/99
PS 5/ According to SCOTUS, it was entirely up to the Senate whether to use a committee as part of its trial proceedings; it was not a matter that the courts were empowered by the Constitution to judge. 96/99
PS 6/ By parity of reasoning, if the current House decides (by majority vote) that it is the sense of the House that the House Judiciary Committee should have the unredacted Mueller grand jury materials 97/99
PS 7/ in order to know whether to report to the full House a recommendation for impeachment proceedings, that, too, is non-justiciable (i.e., not a constitutional question that can be adjudicated by the courts). 98/99
PS 8/ BASTA. BASTA. 99/99
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