By Robert Romano

“[President Donald Trump] should prefer that [Attorney General Jeff] Sessions continue running 99 percent of the Justice Department while the Russia investigation wraps up than to turn over 100 percent of DOJ to the deep state for the months or year that it would take to confirm a new Attorney General.”

That was Americans for Limited Government President Rick Manning’s blunt assessment of the relatively easy choice facing President Donald Trump when it comes to retaining Attorney General Jeff Sessions in his position.

Namely, that if Sessions were to step down, Trump would be turning over control of the entire Justice Department to Deputy Attorney General Rod Rosenstein for the foreseeable future while Sessions’ replacement was being vetted by the Senate — all the while doing nothing to regain control over the department’s continued witch hunt for all things related to Russia’s supposed interference in the 2016 U.S. election campaign.

That probe, led by Special Counsel Robert Mueller, has now reportedly delved into Trump’s family business transactions including real estate sales, some dating years before Trump ever started running for President. For example, Russian purchases of some Trump apartments in New York, a 2008 sale of a Florida mansion to a Russian businessman. Other matters include the 2013 Miss Universe Pageant held in Russia.

But what does that have to do with the original allegations in the Christopher Steele dossier that Russia hacked the Democratic National Committee and John Podesta emails and put them on the Wikileaks with the assistance of the Trump campaign — charges that have never been substantiated but were used by the Justice Department to launch the investigation?

The answer is almost nothing. There may be business ties — Trump was the head of global business enterprise — but conducting business is no crime just because it was with Russians.

They may even exceed the mandate of the Special Counsel, John Dowd, one of Trump’s lawyers said in an email to Bloomberg News: “Those transactions are in my view well beyond the mandate of the Special counsel; are unrelated to the election of 2016 or any alleged collusion between the Trump campaign and Russia and most importantly, are well beyond any Statute of Limitation imposed by the United States Code.”

A view shared by Americans for Limited Government’s Manning, who said in a separate statement, “Robert Mueller was originally tasked to investigate Russia’s supposed interference in the 2016 U.S. election campaign. His appointment was directly tied to Attorney General Jeff Sessions’ original recusal on all matters related to the 2016 campaign. The Attorney General’s recusal does not include reported ongoing investigations conducted by the Department of Justice unrelated to the election.”

Sessions’ original recusal was from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States.”

Under 28 CFR 600.1, “Grounds for appointing a Special Counsel,” the regulation states three conditions must be met for there to be a special counsel: “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted,” “That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances,” and “That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

The key element is that a crime must have been committed to be investigated. But what if there was no crime? As noted repeatedly by the National Review’s Andrew McCarthy, the FBI’s original jurisdiction in the Russia investigation was not as a criminal matter but as a counterintelligence investigation. That is, information-gathering about the conduct of a foreign nation, not to build a case for prosecution.

Now it appears to have spun into years-old real estate deals by the President and not into figuring out what, if any, extent Russia was involved with interfering with the U.S. elections, or any crimes that might have been committed, then Mueller’s probe has become nothing more than a fishing expedition.

This is not about investigating the election any more.

All of which raises the question of what purpose does Mueller’s appointment now serve? At this stage, it lacks legitimacy — and instead has gained the appearance of being designed to overturn the outcome of the 2016 election of Trump by the American people, by keeping the Trump administration under permanent investigation for the duration of the President’s term in office.

Trump’s frustration with the Russia investigation is understandable. But having Sessions step down now will not make it go away, even if his recusal was an error, since the Senate would likely hold up his successor anyway.

Now that Mueller’s investigation has exceeded its mandate, however, Manning suggested that Sessions must reassert control over any Justice Department investigations that have nothing to do with the election: “Attorney General Sessions should bind the Special Counsel to only pursuing matters for which Sessions has recused himself from overseeing as the nation’s top cop. If Robert Mueller has not found any criminal matters to investigate pursuant to Russian interference in the election, then his tenure as special counsel should end.”

That appears reasonable. Sessions, or Rosenstein, who appointed Mueller, needs to keep the special counsel on target. If the investigation has given up on allegations of Russia hacking the election or the Trump campaign helping, that should be the end of it. Then Mueller’s probe has simply become an unconstitutional general warrant — a case that has been made by John Batchelor Show co-host and former U.S. Rep. Thaddeus McCotter — an investigation desperately in search of a crime to legitimize itself.

Robert Romano is the Vice President of Public Policy of Americans for Limited Government.