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Should Rosenstein think the Mueller probe warrants further investigation and possible impeachment by Congress, Section 609 probably has enough play in the joints for Rosenstein to include in his authorized final report to Congress factual information that might form the basis for impeachment, as long as he can secure judicial approval to disclose grand jury information consistent with Federal Rule of Criminal Procedure 6(e) . This is essentially what Jaworski did. As best we can tell, nothing in Justice Department policies or regulations precludes this course of action. The second qualification concerns the nature of Mueller’s investigation. As Marty Lederman has emphasized , the Mueller investigation started primarily as a counterintelligence investigation. James Comey described the investigation as “part of our counterintelligence mission” when he first publicly announced it on March 20, 2017. And when Rosenstein appointed Mueller he authorized him to “conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.” As Comey noted in his March 2017 testimony, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” And that is what Mueller has been doing, as we have seen with the indictments of Manafort, Flynn, the Russians, etc. But Mueller’s investigation remains at least in large part a counterintelligence investigation.
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