Determining the legitimacy of an election is not an appropriate use of a prosecutor or special counsel. Constitutionally, the legitimacy of the 2016 election was accepted at a joint session of Congress held on January 6, 2017. The general public is largely unaware of Special Counsel Robert Mueller’s real track record as an investigator. In both the anthrax and Eliot Spitzer cases, Mueller made extensive use of leaks to smear his targets. The current Russia investigation is far more wide ranging than his mandate allows. His longstanding professional alliance with former FBI Director James Comey creates a conflict of interest. The logic for appointing a special counsel to head an investigation as opposed to a US attorney is to avoid such conflicts.
Introduction. The mandate Deputy Attorney General Rod Rosenstein wrote for Mueller authorizes him to investigate links between the Trump campaign and Russia. The U.S. is not at war with Russia and it’s perfectly legal for Americans to talk to Russian ambassadors and to other officials. An investigation that faithfully followed this mandate would not generate the level of interest that the Mueller probe has. The interest is generated by the possibility that the investigation may lead to impeachment. Calls for impeachment began soon after Trump’s election and are based on the allegation that his election was illegitimate. In Ken Starr’s investigation of President Bill Clinton, Starr’s mandate was extensively debated and repeatedly revised. This doesn’t seem to be an issue for Mueller. He has been investigating whatever he likes from the beginning. It was recently revealed that after Mueller raided Manafort, Rosenstien expanded Mueller mandate to make this legal. So Rosenstien’s role seems to be less about supervising Mueller than about cleaning up after him.
The absurdity of “collusion.” Collusion sounds like a legal word, but it is not defined in the law. The legal word for what is being claimed is “conspiracy,” but this word is too closely associated with the JFK assassination and 9/11 Truthers.
For seventy years, the media has told us that there is nothing scarier than McCarthyism. Arthur Miller’s The Crucible was the ultimate politically correct play. As soon as the 2016 election result was announced, all of that turned around. Ironically, the charge against collusion was led by CNN, the same network that massively promoted Trump during the primaries. The current red scare is the creation of Hillary’s campaign, who needed a way to deflect blame for their election loss. Internal polling found that Hillary’s biggest weakness was the Uranium One scandal. The accusations of collusion between Trump and Russia represent turnabout.
Hillary spent $1 billion on her campaign. Russia spent $250,000 on Facebook ads. The purpose of these ads was to generate sore loser rallies after the election. The audience for these shenanigans was Russians, not American voters. What possible reason would Putin have to prefer Trump, who, unlike Hillary, is a fracking enthusiast? Putin wants to show those dissatisfied with the Russian election process that the American system is no better. For Mueller to claim that the Russians interfered to help Trump win the election is not only inaccurate, but infringes on the president’s foreign policy prerogatives.
Mueller’s many disqualifications. Mueller is a dubious choice for position of special counsel for several reasons. As a longtime ally of former FBI Director James Comey, he is obviously conflicted. Conflicts don’t necessarily prevent people from doing their jobs, but the logic for the special counsel as an institution is to avoid any hint of a conflict of interest in sensitive cases. Mueller’s supporters explain his appointment in terms what a great investigator he is. This claim is hard to square with Mueller’s track record, which is long on leaks and smears and short on trials and convictions.
In the anthrax case, Mueller hounded ebola researcher Steven Hatfill, an innocent man with no known links to anthrax, for five years. Shockingly, Mueller has never felt any need explain this massive screw up, which resulted in a $4.6 million settlement for Hatfill. Mueller later targeted Bruce Ivins, another researcher. Ivins committed suicide amid FBI leaks concerning his mental state and alleged “obsession” with a sorority. A study by the National Research Council released in 2011 confirmed Ivins as the culprit using a genetic testing that the NRC developed independently. It also found that the FBI had oversold the technique it had used to finger Ivins in the first place. As the bureau’s leak campaign had conveniently shamed Ivins into committing suicide, there was never any need to acknowledge in court any weaknesses that the government’s case might have had.
Mueller also set New York Governor Eliot Spitzer up with a hooker sting in 2008. An FBI leak campaign ended what had been a promising political career without Spitzer ever being indicted or convicted of anything. Yet Democrat and media support for Mueller was immediate, rock solid, and enthusiastic. Somehow, they know he has their back.
Unlike Starr, Mueller does not give on the record interviews to the press. Yet every day there are multiple Mueller probe headlines based on anonymous sources. It’s a leak tsunami, a technique Mueller perfected while smearing his Hatfill and Spitzer.
Three of the four subjects that Mueller wants to interview Trump about are outside the scope his mandate. Michael Flynn was prosecuted for calling up a Russian ambassador during the transition and Manafort for tax evasion. The only reason Rosenstein has the authority to appoint a special counsel at all is because Attorney General Jeff Sessions has recused himself on matters related to the Trump campaign. So Rosenstien has no authority to expand Mueller’s jurisdiction. Rosenstein has admitted that he is conflicted in the case, which may explain his lax approach to supervision.
What can Trump do? Either Sessions or Rosenstein can and should restrict the scope of Mueller’s investigation.
If neither Sessions nor Rosenstein will restrict the investigation’s scope, Trump can appoint a chief of staff for the Department of Justice who will outrank Rosenstein. This could be done either by having a fresh nominee confirmed by the Senate or by using the Vacancy Act to bring in a lawyer who has already been confirmed for another position.
Rosenstein wrote a memo that was used to justify Comey’s firing as FBI director and admits he is conflicted. That he wrote this memo but also used Comey’s firing as a pretext to appoint a special counsel makes his motives in this affair open to various interpretations. He was said to be the token Republican in the Obama Justice Department and was retained by Trump on this basis.
The positions of everyone involved have hardened in such a way as to make the most extreme solution more likely: Replace both Rosenstein and Mueller with lawyers who are more willing to follow Justice Department regulations. Despite the release of text messages between Peter Stzrok and Lisa Page showing the two FBI agents conspired to manipulate the 2016 campaign (just as an “insurance policy,” of course), Rosenstein allowed both of them to retain their positions at the FBI. Of course, firings will bring up comparisons to Watergate’s “Saturday Night Massacre.” But the Democrats already think that Trump is worse than Nixon, so he may not have much to lose in this regard.
*McCarthy, Andrew, “Mueller’s Investigation Flouts Justice Department Standards“, National Review, March 17, 2018.
*McCarthy, Andrew, “Rod Rosenstein Is Shirking His Duty to Supervise Robert Mueller, National Review, March 17, 2018.
*”Eliot Spitzer ruined by leaks and FBI director has nothing to say“, Los Angeles Times, March 12, 2008.
*Barnes, “ANALYSIS: Constitution Compels Sessions Dismiss Mueller From Non-Campaign Cases” Guns and Law, April 3, 2018.
*Ashman, Daniel, “Robert Mueller Has Been Botching Investigations Since The Anthrax Attacks,” The Federalist.