It Ain’t Over Till It’s Over

The Special Counsel investigation will take time to complete and it will not be conducted in public.

No matter what the media says, the special counsel investigation being led by retired FBI chief Robert Mueller will take time. It must proceed according to a deliberate well-developed plan with many components: criminal, civil, administrative. The special counsel’s work will likely change the way business is done in Washington.

It may take several months or several years to fully carry out Mueller’s mandate from the Acting Attorney General. But all the issues of who, what and where must be left to the sound discretion of the special counsel. Regardless of political views, Mueller is the best – if not the only ― person in the country to be Special Counsel in the case of Russian Interference With the 2016 Presidential Election and Related Matters.

Undoubtedly everyone in the U.S. will want Mueller to reach his decisions quickly. Mueller will make his decisions when he concludes he has sufficient evidence. Collection and analysis of evidence takes times, as does the decision of what action[s] to take is a deliberate process. To be sure, special counsel Mueller will leave no stone unturned until he is satisfied that he has enough evidence to make his decisions.

Some practical points to keep in mind:

  • The special counsel may conclude that additional jurisdiction beyond that specified in his Appointment Order is necessary and shall consult with the Acting Attorney General.

  • If the special counsel determines that administrative remedies, civil sanctions or other government action outside the criminal justice system might be appropriate, he shall consult with the Acting Attorney General.

  • The special counsel may request the assignment of government employees to assist him. They will be chosen and supervised by the Special Counsel.

  • The special counsel shall exercise the full power and independent authority to investigate and prosecute to the extent of a United States Attorney. The special counsel will decide whether to inform or consul with the Acting Attorney General about the conduct of his duties and responsibilities.

  • If the special counsel shall comply with rules, regulation and procedures of the Justice Department and consult with component offices unless he concludes that it is necessary to consults it is necessary to address the matter directly with the Acting Attorney General.

  • The Acing Attorney General may request that the special counsel provide an explanation for any investigate or prosecutorial step and may conclude in extraordinary circumstances that the action should not be pursued, In such a case the Acting Attorney General shall notify Congress as provided by 28 CFR Sec. 600.9(a)(3).

  • The special counsel may be removed from office only by the personal action of the Acting Attorney General for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause. The Acting Attorney general shall inform the special counsel in writing of the specific reason for his removal.

  • The special counsel shall be provided with all appropriate resourced by the Department and shall develop a proposed budget for the current physical year with the assistance of the Department of Justice for the Acting Attorney General’s review and approval.

  • The special counsel shall notify the Acting Attorney General in conformity with the guidelines with respect to “Urgent Reports”.

  • At the conclusion of the special counsel’s work he shall provide the Acting Attorney General with a confidential report explaining the prosecution or declination decisions reached by the special counsel.

  • The Acting Attorney General may determine that public release of certain Special Counsel reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by the Department of Justice including the special counsel and staff, concerning matters handled y the special counsel shall be governed by the generally applicable Department guidelines concerning public comment with respect to any criminal investigation and relevant law.

Ted Greenberg was Deputy Independent Counsel (In Re Espy). He was a prosecutor at the US Department of Justice for 30-years, and was chief of the Money Laundering section. He was with the legal office of the World Bank and now in private consulting. He has handled time sensitive, complex and multi-dimensional investigations and prosecutions including matters relating to the Intelligence Community and the Defense Department.

Mr. Greenberg helped write the International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation. At the World Bank, he helped design anti-money laundering and terrorist financing regimes and develop the World Bank/UNODC Stolen Asset Recovery Initiative (“StAR”), and the International Consortium to Combat Wildlife Crime.