The Department of Justice has responded to Senator Lindsey Graham's request for
an unredacted copy of the August 2, 2017 memorandum from then Acting Attorney General Rod Rosenstein to Special Counsel Robert S. Mueller, III regarding “The Scope of Investigation and Definition of Authority” (“Scope Memo”).
You may recall that Rod Rosenstein's initial authorization letter for a Special Counsel, dated May 17, 2017, outlined the scope of Team Mueller's authorized investigation in the broadest terms. Basically that letter stated, in a guarded fashion, that Mueller was to continue the Crossfire Hurricane investigation as described by disgraced former FBI Director James Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017. Comey had described an investigation of "four Americans."
The substantially unredacted copy of the second Rosenstein "scope memo" largely confirms that. It states that Team Mueller is authorized to investigate the four Americans--Carter Page, Paul Manafort, George Papadopoulos, and Michael Flynn. A fifth subject's name remains redacted, along with the allegations against that fifth subject.
With regard to the first three subjects--Page, Manafort, and Papadopoulos--the primary and precipitating allegation is the same. Each is alleged to have:
Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government's efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
Please note that these allegations were definitively known to be a hoax perpetrated by the Clinton campaign no later than January, 2017. We have Devin Nunes' word for it, and there is no reason to doubt Nunes, since he's been consistently on the money. Further, shortly before Team Mueller was created, in early May, 2017, the FBI official in hands on control of the Crossfire Hurricane investigation, Peter Strzok, stated in a text to FBI lawer Lisa Page that they both knew that a Special Counsel investigation was likely to be a dry hole, that there was likely "no there there."
And yet. On August 2, 2017, Rod Rosenstein authorized the continuation of a hoax investigation instigated by the Clinton campaign. Rosenstein, the DoJ official overseeing the FBI's Crossfire Hurricane investigation had had an easy half year to figure out what was going on, to figure out that it was all a hoax. Instead he gave Team Mueller the "full speed ahead" directive. To say that Rosenstein has a lot of explaining to do is a major understatement. I assume that Rosenstein has had some tense heart to heart discussions on this topic with AG Bill Barr, as well as assorted investigators and DoJ attorneys--with John Durham at the top of the list. No doubt they want to know whether Rosenstein really believed this nonsense and, if so, who sold him that bill of goods. And I'm sure there questioning of Rosenstein is informed with a very healthy dose of skepticism regarding any self serving explanations Rosenstein has to offer.
But that outrage pales in comparison with the authorization and scope of investigation that Rosenstein provided Team Mueller with regard to Michael Flynn. There are four descriptions of Flynn matters to be investigated, but I'll stick to the first two:
Allegations that Michael Flynn:
o Committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition;
o Committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government;
Now, we know why Rosenstein stated that Flynn had committed a crime by talking to Russian government officials during the Trump transition--if that allegation had not been made then the FBI would have had no authorization to interview Flynn about those contacts. In other words, Rosenstein was, in part, covering for Comey's illegal ambush interview of Flynn.
But now ask yourself: Exactly what crime did Flynn, the incoming National Security Adviser for President-Elect Trump, commit by talking to Russian government officials? Earlier today I quoted former FBI official Kevin Brock, who stated:
Flynn’s participation in the Kislyak conversation was not illogical, given his new role as incoming national security adviser. The call contained no reasonable criminal or national security violation on his part.
Flynn's contacts with Russian officials were part of his duties as incoming National Security Adviser. Far from committing a crime by talking to the Russian Ambassador, Flynn was doing exactly what the incoming National Security Adviser is supposed to do.
So we ask again: What crime did Rod Rosenstein--a highly experienced career DoJ lawyer and prosector who had the entire DoJ available to offer legal advice if he needed it--have in mind? Presumably the Logan Act! Just last night I wrote, regarding the Logan Act:
But the fact is, the Logan Act narrative was a hoax predication. The Logan Act was a law that was enacted in 1798 but had never actually been used to prosecute anybody--not even George Logan, for whom the Act was named. There have been two indictments under the Logan Act--one in 1803 and one in 1852. Neither proceeded to prosecution.
In the actual circumstances of the Flynn case, the FBI--if it was seriously considering that Flynn had somehow violated the Logan Act--was dealing with a law that, in over 200 years, had never been prosecuted. Moreover, it was a law that was widely considered by legal scholars to be unconstitutional. Matthew Walther perfectly captures the farcical tone of the FBI and DoJ supposedly considering a prosecution of Flynn under the Logan Act when he observes that considering indicting Flynn under the terms of the Logan Act, "is the prosecutorial equivalent of announcing a snipe hunt."
That Rod Rosenstein should commit himself in writing to such a farcical position is little short of mind boggling. In fact, if Rosenstein had ever hoped to pass the authorization of a Special Counsel off as a good faith mistake based on bad information or FBI lies, he blew that defensive argument by stating that Flynn had violated the Logan Act. No serious lawyer will believe Rosenstein if he tries to claim he authorized that further investigation of Michael Flynn in good faith. Certainly neither Bill Barr nor John Durham will take Rosenstein seriously.
Rosenstein's best hope, which I assume he has already acted upon, is to cooperate fully. Which is bad news for a lot of former--and maybe some current--FBI and DoJ officials.
ADDENDUM: Devin Nunes' reaction to John Solomon's Just the News:
“This information was redacted until now for one single reason - to hide the fact that false allegations from the Steele dossier were included in Mueller’s scoping memo," Nunes told Just the News.
"In other words, a bunch of lies paid for by the Democrats were used to engineer the appointment of a Special Counsel to drag the Trump administration through the mud for years. The Russia collusion hoax was a disgrace, and we can’t let anything like it ever be repeated.”
UPDATE 1: Everyone is speculating about that redacted fifth subject of investigation. Check this out:
Oh, and the redacted portion almost certainly refers to POTUS Donald Trump and “obstruction” allegations— Undercover Huber (@JohnWHuber) May 6, 2020
UPDATE 2: Pretty funny. Legal commentators are agog over Rosenstein's references to "collusion" and the Logan Act:
Techno Fog: The Logan Act. Wow.
Undercover Huber: Absolutely insane: Rod Rosenstein wrote a scope memo not only tasking Mueller with investigating vague “Collusion”, but also @GenFlynn for violating the Logan Act(!)