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February 8, 2018

FORMER ATTORNEY GENERAL MICHAEL MUKASEY: The Memo and the Mueller Probe: If the investigation arose from partisan opposition research, what specific crime is he looking into?

The regulation that governs the jurisdiction of the special counsel requires that he be “provided with a specific statement of the matter to be investigated.” The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to “conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017,” which covers “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and any matters that may arise “directly” from that investigation.

But the investigation then disclosed by Mr. Comey was not a criminal investigation; it was a national-security investigation. Possible Russian meddling in the 2016 election is certainly a worthy subject for a national-security investigation, but “links” or “coordination”—or “collusion,” a word that does not appear in the letter of appointment but has been used as a synonym for coordination—does not define or constitute a crime. The information, and misinformation, in the Steele dossier relates to that subject.

If partisan opposition research was used to fuel a national-security investigation that has morphed into a series of criminal investigations, and the special counsel has no tether that identifies a specific crime, or “a specific statement of the matter” he is to investigate, that is at least unsettling. By contrast, the Watergate, Iran-Contra and Whitewater investigations, whatever you think of how they were conducted, identified specific crimes. The public knew what was being investigated.

Here, none of the charges Mr. Mueller has brought thus far involved “coordination” or “collusion” with the Russians. Mike Flynn and George Papadopoulos both pleaded guilty to lying to the FBI, the latter over the timing of conversations with Russians in which he was allegedly offered but never received “dirt” on Mrs. Clinton, including her emails. He also attempted to set up a meeting between the Russians and Mr. Trump, but the campaign blew off that effort. Notably, Mr. Papadopoulos did not plead guilty to participating in any plot that involved “coordination.” The Paul Manafort and Rick Gates indictments charge fraud on the government through receipt of and failure to disclose payments from a pro-Russian Ukraine politician.

What to do? I believe that at a minimum, the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court; and Mr. Mueller’s mandate should be defined in a way that conforms with the legal standard of his office. Both would go a long way toward assuring that we do more than talk about a “government of laws.”

Flashback: “Hypothesis: The spying-on-Trump thing is worse than we even imagine, and once it was clear Hillary had lost and it would inevitably come out, the Trump/Russia collusion talking point was created as a distraction.”