andrew-c-mccarthy

The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

The attorney general believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts (e.g., evidence destruction, bribing witnesses); (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions the Constitution empowers him to take (e.g., firing or threatening to fire subordinates), it is not the place of an inferior executive officer, such as a federal prosecutor, to second-guess them as “corruptly motivated.” Recognizing how traumatic accusing a president of a crime is for the country, moreover, Barr thinks an obstruction offense would have to be crystal-clear and serious — you don’t tear the nation apart over something about which reasonable minds could differ.

By contrast, Mueller’s staff believes that (a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt. Furthermore, little or no consideration should be given to whether a president’s allegedly obstructive act is especially clear or serious because the president (at least if the president is a Republican) must be treated like anyone else — otherwise, the president is placed above the law. (Democratic presidents, to the contrary, are the law — see, e.g., DACA, Obamacare decrees, IRS harassment of conservative groups, Fast and Furious stonewalling of Congress . . .)

Playing Out the Alternative Scenarios
This drastic divergence on what can constitute an obstruction offense had practical consequences here.

For most of his investigation, Mueller was “supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.

So, let’s play out the alternative scenario.

Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.

More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.

Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.

Consequently, direct confrontation with the AG was the last thing they wanted. It would have guaranteed failure. The Mueller report’s discussion of obstruction standards would not have gotten out the Main Justice door as an authoritative statement of the law. There would have been a revised articulation of obstruction law as it applies to the president. There would have been vigorous debate over the eleven instances of obstruction Mueller wanted to allege. The report would have been scrutinized carefully by Justice Department lawyers, especially where it plays fast and loose with the facts (see, e.g., my Papadopouolos column). It might never have been released. If it had been released, it would have been discredited or dramatically revised.

That would not have helped the impeachment cause.

So . . . Plan B: What if we decline to make any recommendation on obstruction?

Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.

This, then, became the plan: Mueller would decide not to decide.

There was just one problem: Mueller would need a reason for not deciding. Barr was sure to ask. Mueller could not truthfully respond, “Well, we see ourselves as congressional impeachment counsel.” Barr has been quite clear (and quite right) that federal prosecutors exist to enforce the law, not to do Congress’s work — Congress has its own bloated staff for that.

Mueller’s staff would need to come up with something that would pass the laugh test. After all, there was no collusion case, so rendering a prosecutorial judgment on the obstruction question was the only thing for which a special counsel had arguably been needed. Now, Mueller was about to tell the AG he would be abdicating on that. He’d be asked to explain himself, and if he didn’t have a compelling answer, he’d need to stall.

It happened on March 5, during Barr’s first meeting with Mueller after being confirmed. Taken aback by Mueller’s announcement that he would not be deciding the obstruction question, Barr pressed him repeatedly: “Is it because of the OLC guidance?” Mueller insisted that it was not. When asked what, then, was the reason, Mueller meandered about how they were still formulating their rationale.

Get it? Result-oriented: Decision first, then we’ll cobble together the reasoning.

Why would Mueller do this? Again, play out the alternative scenario.

If the special counsel had told Barr that the OLC guidance was his rationale for not deciding, Barr would likely have told him, “Don’t worry about the OLC guidance, that’s not your job. The OLC guidance only says we can’t return an indictment now. We still need to know whether there is a prosecutable case. Just make a recommendation on that, one way or the other.”

If that had happened, Mueller would have been cornered. If he recommended in favor of indictment, he would have ended up in the confrontation with Barr over obstruction law that he was trying to avoid. If he recommended against an indictment, he would have undermined the impeachment effort.

So he punted. And it worked.

Mueller told Barr he was still formulating his rationale for not deciding the issue. Maybe the staff really was still trying to come up with a coherent explanation; or maybe in the back (or front) of their minds, they figured “we’re still formulating” was vague enough that they could ultimately rely on the OLC guidance, even if Mueller had said it was not his rationale.

Whatever the calculation was, two and a half weeks later, when Mueller delivered his final report to Barr on March 22, Mueller and his staff expressly invoked the OLC guidance.

Does that mean Mueller was being dishonest on March 5? Does it mean his thinking truly was still evolving?

What difference does it make?

What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.

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And now, for good measure, Mueller took pains on Wednesday to stress that, in our system, it is Congress’s duty to address presidential misconduct.

For partisan lawyers who saw their special-counsel gig as an opportunity to play congressional impeachment counsel, it is Mission Accomplished.

Trump Keeps Giving Mueller Reasons to Pursue the ‘Collusion’ Probe

Nor does it matter that I believe any public report Mueller files about the president should be succinct. Yes, Mueller is merely a prosecutor; he is not counsel to a congressional committee conducting an impeachment investigation. The Justice Department is not supposed to speak publicly about the evidence against uncharged persons — in fact, Comey’s violation of this principle was Rosenstein’s rationale for recommending his dismissal. To my mind, either there is enough evidence to charge a crime, in which case Mueller should ask the Justice Department for permission to indict (and address the standing DOJ guidance against indicting a sitting president), or there is not, in which case Mueller should state that prosecution should be declined owing to insufficiency of the proof.

But again, what I think is beside the point. This has been a highly irregular investigation from the start. There is every reason to suspect that the same politicians who rebuked Comey for publicizing the Clinton evidence will demand full disclosure of the Trump evidence, even if Mueller recommends no criminal charges. And the new Democratic Congress will have a sound rationale for doing so: High crimes and misdemeanors need not be indictable offenses, so even if Mueller has not found prosecutable crimes, he could conceivably have found impeachable offenses.

This brings us to my 2019 caveat: If Mueller’s highly elastic warrant is to probe Trump “collusion” with the Kremlin, why would he stop if the president keeps giving him reasons to continue?

The first cabinet meeting of the new year found the president making the appalling claim that “the reason Russia was in Afghanistan” — i.e., the reason the Soviet Union invaded Afghanistan in 1979 — “was because terrorists were going into Russia.” Trump astonishingly added, “They were right to be there.”

These are such shocking assertions for an American president to make, it is difficult to know where to begin. The invasion was a familiar episode of totalitarian Communist aggression. There was nothing defensive about it. Moscow swarmed Afghanistan to prop up a deeply unpopular pro-Soviet regime that had seized power and was under insurgent attack for attempting to impose Communist “reforms” on a fundamentalist Islamic population. Terrorists did not provoke the Soviet invasion of Afghanistan; as I outlined in Willful Blindness, the global jihadist movement is an outgrowth of the response to that invasion: specifically, the summons to Muslims worldwide to join the battle, and the aid provided by the United States and its Sunni allies (mainly Saudi Arabia and Pakistan) to the mujahideen — in particular, to the so-called “Arab Afghans” who forged al-Qaeda. The president’s statements indicate that he grasps neither

(a) the geopolitical challenge posed to the West by the Soviet Union and, derivatively, Putin’s revanchist regime nor

(b) the roots of militant Islam in the modern era.

For a guy under investigation for colluding with the Kremlin, the president’s remarks are also noteworthy because they are exactly what Putin would want Trump to say.

.. Still, Trump’s remarks, echoing Russian propaganda about its aggression, are apt to be of interest to the special counsel.

.. ‘Collusion’ — the Evidence

Just sticking with what we know (as if Mueller has no other information): Cronies of Putin told Trump-campaign officials that the Russian government wanted Trump to win the election. Trump recruited into his campaign the likes of Paul Manafort and Rick Gates, who had close ties and multi-million-dollar business dealings with Putin cronies, including leaders of the Kremlin-backed Ukranian political party that was largely responsible for the strife in Ukraine that has led to civil war and Putin’s annexation of Crimea. Manafort, who became Trump’s campaign chairman, offered briefings on the campaign to Oleg Deripaska, an oligarch so close to Putin that the latter has interceded on Deripaska’s behalf to protest U.S. travel restrictions. The Trump campaign also recruited as a foreign-policy adviser Carter Page, an obscure figure best known for being so sympathetic to the Kremlin, and so financially involved in the Russian energy sector, that Russian intelligence attempted to recruit him as an asset in 2013 (apparently unsuccessfully).

Meantime, top Trump-campaign officials elected to take a meeting with a Kremlin-connected lawyer at which they expected to receive incriminating information on Hillary Clinton that came straight from Russian-government files. The meeting was a bust — the lawyer, Natalia Veselnitskaya, appears to have used it as an opportunity to lobby top Trump associates against the Magnitsky Act, a notorious pet peeve of Putin’s. Yet the president’s son, Don Jr., apparently at the president’s urging, attempted to mislead the New York Times about the genesis of the meeting, coming clean only after learning that the Times had, and was about to publish, Trump Jr.’s emails detailing the expected transmission of campaign dirt about Clinton.

There is no known indication of any Trump-campaign participation in the hacking of Democratic email accounts. Nevertheless, Mueller is known to be investigating Trump associate Roger Stone, who is known to have communicated online with a hacker known as “Guccifer 2.0.” An indictment filed by Mueller identifies a persona known as Guccifer 2.0 as a front for Russian military intelligence, responsible for hacking the emails of the Democratic National Committee, which were leaked to the media right before the 2016 Democratic convention.

In August 2016, weeks before WikiLeaks published the emails stolen from the account of Clinton-campaign chairman John Podesta, Stone posted a tweet that could be interpreted as (but did not necessarily indicate) foreknowledge of the Podesta hack. (“Trust me, it will soon the Podesta’s time in the barrel. #crookedHillary” [sic].) In October 2016, as WikiLeaks was preparing to publish the Podesta emails, Stone was in touch with Randy Credico, a left-wing radio host who credibly claimed to be in contact with WikiLeaks founder Julian Assange. Stone described Credico as his “back-channel communication with Assange.” Stone was also exchanging emails with Steve Bannon, then Trump’s campaign manager. Stone tweeted on October 3, “I have total confidence that @wikileaks and my hero Julian Assange will educate the American people soon. #LockHerUp.” WikiLeaks began publishing the Podesta emails on October 7.

It has been credibly reported that Mueller is investigating the controversial conservative writer Jerome Corsi over his contacts with Stone — and has pressured Corsi to plead guilty to misleading the grand jury about them. Mueller is also investigating the efforts of a Republican activist, Peter Smith (who died in 2017), to locate through hackers the 33,000 emails Hillary Clinton purged from her private server system. Smith was not part of the Trump campaign, but he reportedly told people that Trump-campaign officials, including Flynn, were aware of his efforts and encouraged them.

Trump officials have denied these claims. But the allegation can come as no surprise since candidate Trump himself infamously exclaimed (at a July 2016 press conference): “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

I’ve always thought it was silly to see this as anything other than Trump, in an injudiciously humorous way, trying to call voters’ attention to the lawlessness and national-security recklessness of Mrs. Clinton’s private server system and destruction of government records. But it is not a statement made in a vacuum. A number of Trump’s public statements about Putin have been jaw-dropping: praising him as a “strong leader” and “far more [a leader] than our president [Obama] has been a leader”; defending Putin after the British government found that he’d approved the poisoning of a defector (“Have they found him guilty? I don’t think they’ve found him guilty”); drawing a moral equivalence between Russian-regime murders of dissenters and covert operations by U.S. intelligence. (To the description of Putin as a “killer,” Trump responded: “There are a lot of killers. Do you think our country is so innocent?”) At their Helsinki summit, Trump even appeared to side with Putin against the conclusion of American intelligence agencies that Russia is responsible for hacking Democratic emails during the 2016 campaign; and he delusionally gushed over Putin’s laughable offer to have Russia’s investigators work with Mueller on the hacking case.

Trump claimed during the 2016 campaign that he had no business dealings with Russia. But in late November, in connection with the guilty plea of former Trump fixer Michael Cohen to a false-statements charge, we learned Mueller’s investigators can prove that Trump’s organization continued throughout 2016 to negotiate the construction of a Trump Tower in Moscow — negotiations that involved communications with Russian-government officials and discussions about potential meetings with Putin and Russian prime minister Dimitry Medvedev. To be sure, it is not a federal crime to explore real-estate development in Russia. Nevertheless, the revelations raise suspicion in reasonable minds that Trump’s extraordinary public ingratiation of the Kremlin’s murderous dictator is financially motivated — or, worse, the result of being compromised because Putin was in a position to reveal that Trump was deceiving the public about his business dealings with Russia.

. . . and now Trump, as president of the United States, has offered a revisionist history of the Soviet invasion of Afghanistan — pure fiction that not only contradicts American policy and actions taken to counter Moscow’s aggression, but is indistinguishable from the propaganda that Putin himself would peddle.

It is an article of faith among Trump’s most ardent followers that the “collusion” aspect of the Mueller probe is a complete fabrication. You may notice, however, that not a single detail in the above summary is drawn from the Steele dossier. I am going strictly on publicly available information that is either certainly true or highly likely to be true.

Of course, none of this establishes a conspiracy between the Trump campaign and the Kremlin to conduct hacking operations. Furthermore, none of it establishes that the president has committed a crime. But a lot of it is highly unsavory. If marshaled by a competent prosecutor, it could satisfy many Americans that there were abundant grounds to warrant an investigation.

Robert Mueller’s Plan

Special Counsel Mueller is building a report, not a case.

The real flaw was the assumption that Special Counsel Mueller is lining up witnesses and building a criminal case, as prosecutors do.

.. He is not.

No prosecutor builds a case the way Mueller is going about it. What prosecutor says, “Here’s our witness line-up: Michael Flynn, George Papadopoulos, Alex van der Zwaan, Rick Gates, Paul Manafort, Michael Cohen. And what is it that they have in common, ladies and gentlemen of the jury? Bingo! They’re all convicted liars.”?

.. For a prosecutor, like any trial lawyer, what the jury thinks is at least as important as what the law says. If the most memorable thing the jury takes into the deliberation room is that no one should believe a word your witnesses say, you are not going to convict the lowliest grifter, much less the president of the United States of America.

.. As a prosecutor, you build a case by having your cooperating accomplice witnesses plead guilty to the big scheme you are trying to pin on the main culprit. After all, what makes these witnesses accomplices, literally, is that they were participants in the main culprit’s crime. That’s the scheme you’re trying to prove. So, on guilty-plea day, the cooperator comes into court and admits guilt to the same conspiracy on which you are trying to nail the lead defendant.

.. This kind of guilty plea signals to the world, including to all the other suspects, that the accomplice is ready to testify that the criminal scheme existed.

.. The accomplice is ready to describe what he did and what everybody else did. Virtually every appellate opinion reviewing conspiracy convictions notes the principle that once a conspiracy is shown to exist, only slight evidence is needed to tie a conspirator to it.

.. Juries do not convict people because they like or trust the prosecution’s witnesses. They convict because they are persuaded that justice demands redress for a real crime.

.. we have stressed that the probe is a counterintelligence investigation, not a criminal investigation. The idea was not to dizzy you with Justice Department esoterica. The point is that we don’t want prosecutors involved until it has been established that a crime was probably committed

.. Mueller does not have a crime he is investigating. He is investigating in hopes of finding a crime, which is a day-and-night different thing.

.. collusion pours off every page of the narrative statements Mueller submitted to the courts in the cases of Papadopoulos and Cohen. They consult with Russian operatives, plan meetings for themselves and Trump with Russian officials, and — in Papadopoulos’s case — discuss the possibility of obtaining campaign dirt against Hillary Clinton from Russians. Yet, though these activities are the laser focus of his investigation, Mueller did not charge them as crimes because they are not crimes. Papadopoulos, Cohen, and the rest got jammed up, not for what they did, but for lying about what they did.

.. We know from our own daily lives that crimes account for only a very small percentage of the things people lie about. Indeed, throughout the 1990s, Democrats insisted that prosecutors should leave Bill Clinton alone because everybody lies about sex. People lie about things that they are embarrassed or ashamed about.

.. Successful politics requires horse-trading and compromise, so pols are forever explaining how they could actually be against something they voted for. A lot of this is embarrassing stuff. Consequently, when people in and around politics get caught practicing politics, they often lie about what they’ve done.

.. Politics is not a crime, of course. Consequently, if you criminalize politics — if you turn a prosecutor loose to investigate political campaign activities — you are apt to find unsavory conduct that is not criminal but that some people will lie about.

.. The report will detail disturbing — and thus politically damaging — connections between Trump associates and Kremlin cronies. But there will be no collusion crime, and thus no charges and no need for witnesses.

.. Second, with the media as his biggest cheerleader (other than Jeff Flake), the false-statements pleas create the illusion of a collusion crime, and thus appear to vindicate Mueller’s sprawling investigation.

.. the media omits that no one has been charged, much less convicted, of any crime involving collusion between Trump and Russia.

.. Convicted liars never get cross-examined in a report. Nor do they give the bumpy, inconsistent testimony you hear in a courtroom. Instead, their version of events is outlined by a skilled prosecutor, who writes well and knows how to make their stories sing in perfect harmony.

.. prove that many people Trump brought into his campaign were corruptible and of low character. Mueller, the career Justice Department and FBI man, will deftly use this fact to argue that suspicions about these people, and hence the investigation, were fully justified even if — thankfully — there was no prosecutable Trump–Russia conspiracy.

.. Trump’s Republican and conservative critics will cheer, figuring the president and his rogues’ gallery had it coming. Democrats will cheer, knowing this would never happen to Democrats.

Mr. Rosenstein, What Is the Crime?

if a Democratic takeover of the House is to be avoided, the GOP desperately needs the voters who reluctantly pulled the lever for Trump only because he was not Hillary Clinton.

.. You may notice that Mrs. Clinton is not on the ballot this time. Meanwhile, in just the last few days, the president has attacked his attorney general yet again, this time for prosecuting two allegedly corrupt Republican congressmen and thus refusing to politicize the Justice Department; he has conflated himself with the country in absurdly suggesting that an anonymous derogatory op-ed by an administration official might amount to “TREASON,” such that the New York Times should “turn [the author] over to the government at once” for the sake of “National Security”

.. It’s about the Presidency, Not the President
More to the point, these derelictions — the president’s self-supplied fuel for the media narrative of an unhinged chief executive — make it politically risky for Republicans to defend the presidency by defending the president from what appears to be an unwarranted investigation.

.. To be clear, if there is probable cause to believe that Donald Trump was criminally complicit in Russia’s interference in the 2016 election, he must be investigated, and the nation must resign itself to the compromised administration that entails. But we have never been told, much less shown, that this is the case. It is supposed to be established before the investigation commences.

.. administration officials have had to go into their own pockets, paying millions in legal fees to defend themselves and comply with the special counsel’s demands

.. the signal has gone out to the meritorious people we should want to serve in future administrations: Why leave your prestigious, profitable job to serve in government and risk financial and reputational ruin?

.. 1. Rectitude
Mueller’s personal rectitude would be irrelevant. If he or you don’t think so, go ask Ken Starr. In any event, a prosecutor’s personal integrity is never dispositive when he or she commences an investigation, seeks a warrant, or tries an accused. What matters is whether the laws and rules have been satisfied.

2. Special Counsel Neither Necessary Nor Authorized for Investigation of Russia
If the president were a Democrat, it would be pointed out that to question the special counsel’s criminal investigation of the president is not to question the FBI’s counterintelligence investigation of Russia’s interference in the 2016 election. The latter is vital. No one denies that it should be aggressively pursued to its conclusion.

Moreover, if the counterintelligence investigation were incidentally to turn up concrete evidence that Donald Trump had committed a crime, no one denies that a special counsel appointment would be appropriate at that time. (Get it? Evidence of crime first, then assignment of prosecutor.) But unless and until that were to happen, a counterintelligence investigation does not need a prosecutor at all, much less a special counsel. That is why the aforementioned special-counsel regulations do not authorize an appointment for counterintelligence cases.

.. 3. Conflict of Interest
It is a condition precedent to the appointment of a special counsel that there be a conflict of interest. There is no such conflict preventing the Justice Department from investigating Russian interference in the election. If that were not obvious enough, Mueller himself has elucidated the point by transferring the two indictments he has brought against Russian operatives to Justice Department components — the “Troll Farm” case to the U.S. attorney’s office in the District of Columbia, and the hacking case to Main Justice’s National Security Division. If there were a conflict of interest, it would be inappropriate for the special counsel to make such transfers.

.. But while we’re on the subject of conflicts . . . let’s have a brief look at Mueller’s staff.

.. Of course, for the sake of his own credibility, Mueller is foolish to have stacked his staff with partisans. (Please, spare me the blather about how the Justice Department is not allowed to inquire about party affiliation when hiring. These are not obscure lawyers who applied for a job; they are well-known lawyers whom Mueller recruited into a hyperpolitical case, fully aware that they are activist Democrats.) But there is foolish, and then there is disqualifying. Being a Democrat is not disqualifying.

.. So whom does he turn around and recruit? Well, his chief deputy is Andrew Weissman, and his main legal beagle is Michael Dreeben. They were two of the top officials at the purportedly conflicted DOJ — respectively, chief of the criminal-fraud section and deputy solicitor general. Before her stint as Hillary Clinton’s lawyer, Jeannie Rhee was DOJ’s deputy assistant attorney general. She, like several other members of Mueller’s bloated staff, comes to the task of investigating the president either directly from the purportedly conflicted Justice Department or after a brief stint in private practice.

.. In any proper special-counsel investigation, it would be worth asking why, if the Justice Department is too conflicted to handle the case, its top officials are an ethical fit to staff the case. In this particular investigation, however, the actions of the Justice Department (and the FBI)

.. Weissman’s adulation of former acting attorney general Sally Yates for insubordinately defying the president on an enforcement matter, is it not worth asking why Attorney General Jeff Sessions had to recuse himself but Weissman gets to run the investigation?

.. If a Democrat were in the White House, it wouldn’t happen. Because if a Democrat were in the White House, and Weissman & Co. were Republicans transferred over from the Republican DOJ now under investigation, congressional Democrats would be screaming that there was no conflict of interest warranting the appointment of a special counsel, and that the only apparent conflict involved the prosecutors. And Republicans sages would be meekly agreeing — as would I (less meekly, I hope).

.. There is one thing and one thing alone that would justify the appointment of a special counsel: concrete evidence that Donald Trump committed a crime in connection with Russia’s election interference. So, to repeat: For precisely what federal crime is the president of the United States under investigation?