A newly revealed memo from Acting Attorney General Rod Rosenstein raises several questions about Special Counsel Robert Mueller's Russia investigation, but leaves us with few concrete answers. In its simplest form, the memo tells us that the special counsel asked Rosenstein for the authority to look into the possibility of collusion by former Trump campaign manager Paul Manafort, and that Mueller was granted that authority last August. The special counsel felt he had to disclose the contents of the (heavily redacted) memo to fend off Manafort’s pretrial motion to dismiss 18 counts brought against him.
The memo, dated August 2, 2017, offers a rare glimpse into the investigation, and it undermines the Republican narrative that Mueller has “gone rogue.” Still, this memo is mostly a reminder of how little we know about what the special counsel knows. Here are several things to keep in mind while you read coverage of it over the next few weeks.
Collusion is not a foregone conclusion. The Rosenstein memo does not tell us anything “new” about whether President Trump or his associates “colluded” with the Russians in advance of the 2016 election. Always remember the vital difference, as a matter of law, between “collusion” and “conspiracy.” There is no federal crime of collusion. And Mueller already has availed himself of federal conspiracy law in the cases he’s brought against Manafort, former Trump aide Rick Gates, and all those Russians. Now that this memo is public, the big question is whether Mueller has chosen to charge Manafort with any Russia/election-related crimes, or whether he’s waiting to do so later. (Say, if and when he charges other Trump officials with similar crimes.)
Manafort’s defense has not collapsed. The publication of the memo, and its application in Manafort’s case, does not signal the demise of his defense cases in Virginia or in Washington. Nor does it necessarily presage the announcement of a plea deal anytime soon. The memo likely destroys one of Manafort’s pretrial arguments, specifically, that Mueller exceeded the scope of his authority by indicting him, but the document does not otherwise affect the strength or weakness of the government’s case. I cannot imagine that Manafort’s lawyers believed, in their hearts, that they would prevail on the procedural question of the prosecutor’s authority. And I don’t expect Manafort to flip, if he ever does, until and unless the defense loses more substantive pretrial motions.
A needle, not the haystack. As Marcy Wheeler persuasively argues, the Rosenstein memo obviously does not represent the sum of all DOJ authorizations to Mueller. If the special counsel were as meticulous in all instances as he appears to have been here – and why wouldn’t we think that about Robert Mueller? – it is likely that he’s frequently tracked back to Rosenstein to make sure each branch of his probe was duly authorized. There is no way to tell how many of these requests Rosenstein has granted, and how many, if any, he’s denied. My guess is that there are many of these authorizations stashed away, ready to be hauled out as needed.
In those instances where Mueller sought and received DOJ authority from Rosenstein, the two feds are tethered together politically even more than they were when Rosenstein first appointed Mueller as special counsel. And we may never know if there are instances in which Rosenstein has denied Mueller the authority to investigate – say, if Mueller asked to probe Trump’s alleged Russia ties through his tax returns and the deputy attorney general said “no.” My guess is that Mueller and Rosenstein would work together in those circumstances to refine the scope of any request to make it palatable to both parties.
The memo is not a "win" for Mueller. Beyond stiff-arming Manafort's pretrial motion, the release of the memo makes sense in the court of public opinion, too, by illustrating the ways in which Mueller is following proper protocol. But its release cannot please Mueller or his investigators to have to publicly disclose dribs and drabs like this in their pending litigation while they have so many open investigations underway. Does anything in the Rosenstein memo tip off any potential targets or suspects as to what’s coming? Probably not. Donald Trump, Jr. and Jared Kushner both know they are in serious trouble with or without this memo.
Nor is the memo a smoking gun against Rosenstein and/or Mueller. There is nothing in the text of the memo that any reasonable person could or would use to try to disqualify either the deputy attorney general or the special counsel. Manafort is low-hanging fruit in the context of all the other Trump players who are suspected of illegal or unethical behavior, and it should have been an easy call for Rosenstein to sign off on Mueller’s request. The flip side of that is that it would be difficult, even for the craven Republicans who are supporting the president by trying to undermine Mueller, to stand up and say that the special counsel shouldn’t be investigating someone as historically shady as Manafort.
And no, the memo is not a smoking gun against Trump. The Rosenstein memo does not tell us anything particularly new about the president and his own alleged ties to Russia, which probably explains why Tuesday morning’s “executive time” consisted of nearly-incoherent ramblings about fake news, post offices, “caravans” of immigrants heading our way, and not a peep about Mueller, Rosenstein, or Manafort. In his particularly paranoid moments, Trump might see the collaboration between the special counsel and the deputy attorney general as its own “conspiracy against the United States.” In reality, that collaboration is what the rule of law – a real “rule of law” and not the ersatz version Trump is selling – looks like.
The mere existence of the Rosenstein memo is not a major break in this story. It’s yet another reminder, though, that there are going to be many major breaks to come.