Checking Robert Mueller

The sentencing judge brings to light dodgy FBI conduct in the Mike Flynn case.

Robert Mueller has operated for 19 months as a law unto himself, reminding us of the awesome and destructive powers of special counsels. About the only possible check on Mr. Mueller is a judge who is wise to the tricks of prosecutors and investigators. Good news: That’s what we got this week.

.. The agents (including the infamous Peter Strzok) showed up within two hours. They had already decided not to inform Mr. Flynn that they had transcripts of his conversations or give him the standard warning against lying to the FBI. They wanted him “relaxed” and “unguarded.” Former Director James Comey this weekend bragged on MSNBC that he would never have “gotten away” with such a move in a more “organized” administration.

.. The whole thing stinks of entrapment, though the curious question was how the Flynn defense team got the details. The court filing refers to a McCabe memo written the day of the 2017 meeting, as well as an FBI summary—known as a 302—of the Flynn interview. These are among documents congressional Republicans have been fighting to obtain for more than a year, only to be stonewalled by the Justice Department. Now we know why the department didn’t want them public.

.. They have come to light thanks to a man who knows well how men like Messrs. Mueller and Comey operate: Judge Sullivan. He sits on the U.S. District Court in the District of Columbia, and as he wrote for the Journal last year, he got a “wake-up call” in 2008 while overseeing the trial of then-Sen. Ted Stevens of Alaska. Judge Sullivan ultimately assigned a lawyer to investigate Justice Department misconduct.
.. The investigator’s report found prosecutors had engaged in deliberate and repeated ethical violations, withholding key evidence from the defense. It also excoriated the FBI for failing to write up 302s and for omitting key facts from those it did write. The head of the FBI was Mr. Mueller.
.. Judge Sullivan has since made it his practice to begin every case with a Brady order, which reminds prosecutors of their constitutional obligation to provide the defense with any exculpatory evidence. On Dec. 12, 2017, days after being assigned the Flynn case, Judge Sullivan issued such an order, instructing Mr. Mueller’s team to turn over “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” Had any other judge drawn the case, we likely would never have seen these details of the FBI’s behavior.

It’s clear that something has concerned the judge—who likely sees obvious parallels to the Stevens case. The media was predicting a quick ruling in the Flynn case. Instead, Judge Sullivan issued new orders Wednesday, demanding to see for himself the McCabe memo and the Flynn 302. He also ordered the special counsel to hand over by Friday any other documents relevant to the Flynn-FBI meeting.

.. Given his history with the FBI, the judge may also have some questions about the curious date on the Flynn 302—Aug. 22, 2017, seven months after the interview. Texts from Mr. Strzok and testimony from Mr. Comey both suggest the 302 was written long before then. Was the 302 edited in the interim? If so, by whom, and at whose direction? FBI officials initially testified to Congress that the agents did not think Mr. Flynn had lied.

Judges have the ability to reject plea deals and require a prosecutor to make a case at trial. The criminal-justice system isn’t only about holding defendants accountable; trials also provide oversight of investigators and their tactics. And judges are not obliged to follow prosecutors’ sentencing recommendations.

No one knows how Judge Sullivan will rule. His reputation is for being no-nonsense, a straight shooter, an advocate of government transparency. Whatever the outcome, he has done the nation a favor by using his Brady order to hold prosecutors to some account and allow the country a glimpse at how federal law enforcement operates. Which is the very least the country can expect.

 

Mueller Examining Trump’s Tweets in Wide-Ranging Obstruction Inquiry

WASHINGTON — For years, President Trump has used Twitter as his go-to public relations weapon, mounting a barrage of attacks on celebrities and then political rivals even after advisers warned he could be creating legal problems for himself.

Those concerns now turn out to be well founded. The special counsel, Robert S. Mueller III, is scrutinizing tweets and negative statements from the president about Attorney General Jeff Sessions and the former F.B.I. director James B. Comey, according to three people briefed on the matter.

.. Several of the remarks came as Mr. Trump was also privately pressuring the men — both key witnesses in the inquiry — about the investigation, and Mr. Mueller is examining whether the actions add up to attempts to obstruct the investigation by both intimidating witnesses and pressuring senior law enforcement officials to tamp down the inquiry.

.. Trump’s lawyers said. They argued that most of the presidential acts under scrutiny, including the firing of Mr. Comey, fall under Mr. Trump’s authority as the head of the executive branch and insisted that he should not even have to answer Mr. Mueller’s questions about obstruction.

But privately, some of the lawyers have expressed concern that Mr. Mueller will stitch together several episodes, encounters and pieces of evidence, like the tweets, to build a case that the president embarked on a broad effort to interfere with the investigation. Prosecutors who lack one slam-dunk piece of evidence in obstruction cases often search for a larger pattern of behavior, legal experts said.

.. the nature of the questions they want to ask the president, and the fact that they are scrutinizing his actions under a section of the United States Code titled “Tampering With a Witness, Victim, or an Informant,” raised concerns for his lawyers about Mr. Trump’s exposure in the investigation.

.. “If you’re going to obstruct justice, you do it quietly and secretly, not in public,” Mr. Giuliani said.

.. federal investigators are seeking to determine whether Mr. Trump was trying to use his power to punish anyone who did not go along with his attempts to curtail the investigation.

.. Investigators want to ask Mr. Trump about the tweets he wrote about Mr. Sessions and Mr. Comey and why he has continued to publicly criticize Mr. Comey and the former deputy F.B.I. director Andrew G. McCabe, another witness against the president.

.. They also want to know about a January episode in the Oval Office in which Mr. Trump asked the White House counsel, Donald F. McGahn II, about reports that Mr. McGahn told investigators about the president’s efforts to fire Mr. Mueller himself last year.

.. Mr. Trump has navigated the investigation with a mix of public and private cajoling of witnesses.

.. Around the time he said publicly last summer that he would have chosen another attorney general had he known Mr. Sessions was going to recuse himself from the Russia investigation, Mr. Trump tried behind closed doors to persuade Mr. Sessions to reverse that decision. The special counsel’s investigators have also learned that Mr. Trump wanted Mr. Sessions to resign at varying points in May and July 2017 so he could replace him with a loyalist to oversee the Russia investigation.

.. Mr. Trump issued an indirect threat the next day about Mr. Comey’s job. “It’s not too late” to ask him to step down as F.B.I. director, he said in an interview with Maria Bartiromo on Fox Business Network. The special counsel wants to ask the president what he meant by that remark.

.. Mr. Sessions, his aide told a Capitol Hill staff member, wanted one negative article a day in the news media about Mr. Comey, a person familiar with the meeting has said.

.. By the fall, Mr. Comey had become a chief witness against the president in the special counsel investigation, and Mr. Trump’s ire toward him was well established. His personal attacks evolved into attacks on Mr. Comey’s work, publicly calling on the Justice Department to examine his handling of the Clinton inquiry — and drawing the special counsel’s interest.

.. Mr. Trump’s lawyers have pushed back against the special counsel about the tweets, saying the president is a politician under 24-hour attack and is within his rights to defend himself using social media or any other means.

.. The president continues to wield his Twitter account to pummel witnesses and the investigation itself, ignoring any legal concerns or accusations of witness intimidation.

 

Donald Trump Weighs Ending Security Clearances for Six Ex-Officials Who Have Criticized Him

White House says Trump could revoke clearances of ex-national security officials

President Donald Trump is considering revoking the security clearances of six former senior national security officials, the White House said Monday, moving to punish them for comments purportedly politicizing the investigations into Russian interference in the 2016 election.

“Making baseless accusations of improper contact with Russia or being influenced by Russia against the president is extremely inappropriate,” said White House spokeswoman Sarah Sanders, without specifying.

The threat, which national security analysts described as unprecedented, prompted concerns it was an effort by the president to silence critics.

“An enemies list is ugly, undemocratic, and un-American,” said Rep. Adam Schiff (D., Calif.), ranking member of the House Intelligence Committee.

Ms. Sanders told reporters that the administration is looking at the clearances of former Central Intelligence Agency Director John Brennan, former Federal Bureau of Investigation Director James Comey, former Director of National Intelligence James Clapper, former director of the National Security Agency and the CIA Michael Hayden, former national security adviser and U.N. Ambassador Susan Rice and former FBI Deputy Director Andrew McCabe.

Ms. Sanders said the individuals, many of whom are outspoken critics of the administration in the news media, lend “inappropriate legitimacy to accusations with zero evidence.”

.. Millions of Americans hold security clearances, needed for many government and private-sector jobs. The practice of having senior national security officials retain clearance after leaving government is longstanding and serves various functions, national security officials and analysts said.

National security officials often go on to work in the private sector, particularly at defense contractors, and need access to classified information to support the government. Former officials keep clearances to assist in ongoing criminal and national security investigations. The clearances offer continuity between administrations on intelligence and national security matters, and also would enable former officials to return to active service in a national emergency and offer expertise.

.. “There really isn’t that much precedent of removing clearance of former national security official unless they are indicted or convicted of some criminal offense,” said Evan Lesser, president of ClearanceJobs, a career website. “But ultimately the president does have the power to grant or revoke clearances really to whomever he wants.”

.. Mr. Clapper, on CNN, said, “This is kind of a petty way of retribution for speaking out against the president.”

A Higher Sanctimony

Comey’s memoir shows he is more like Trump than he cares to admit.

But Mr. Trump told an interviewer that he had fired Mr. Comey because the FBI chief wouldn’t say publicly that the FBI wasn’t investigating Mr. Trump. The President also threatened Mr. Comey with a false claim about Oval Office “tapes.” Mr. Comey responded by leaking documents that caused Mr. Rosenstein to name a special counsel, which has put Mr. Trump’s Presidency in mortal peril.

.. The main lesson from Mr. Comey’s book is that Mr. Trump’s abuse of political norms has driven his enemies to violate norms themselves.

.. The most notable fact in the book is how little we learn that is new about Mr. Trump.

.. Mr. Trump is preoccupied with his critics and the validation of his presidential victory. He is clueless that his bullying and flattery would repel Mr. Comey

.. The book mainly adds Mr. Comey’s moral and aesthetic contempt for Mr. Trump.

.. Mr. Comey’s comparison of Mr. Trump to a “mafia” boss is hilariously overstated. Don’t they call it “organized” crime? And what about that code of silence known as omerta? The Trump White House can’t keep anything secret.

.. Mr. Comey reveals in his excessive self-regard that he is more like Mr. Trump than he cares to admit. Mr. Trump’s narcissism is crude and focused on his personal “winning.” Mr. Comey’s is about vindicating his own higher morality and righteous belief.

.. He accuses Mr. Rosenstein of acting “dishonorably” by writing the memo describing how Mr. Comey mishandled the Clinton probe. Yet he barely engages Mr. Rosenstein’s arguments, which quoted from former Justice officials of both parties. Mr. Rosenstein wrote that Mr. Comey was “wrong to usurp” the authority of Attorney General Loretta Lynch and wrong to “hold press conferences to release derogatory information” about Mrs. Clinton.

That mistake made Mr. Comey feel obliged to intervene again in late October—this time to announce the reopening of the probe in a way that helped Mr. Trump. Had Mr. Comey followed Justice protocol in July, he would not have had to make himself the issue in October, damaging the reputation of the FBI and Justice in the bargain.

.. This has been the habit across Mr. Comey’s career, though you’ll find no mention in his memoir of Steven Hatfill, the government scientist he wrongly pursued for years as the anthrax terrorist; or Frank Quattrone, the Wall Street financier he prosecuted twice for obstruction of justice only to be rebuked by an appeals court; or Judith Miller’s recantation of her testimony against Scooter Libby.

Mr. Comey has also had little to say so far about the controversy over the Steele dossier and his handling of the Russian investigation of Mr. Trump. Did he know that the dossier was commissioned by Democrats for the Clinton campaign? He also has nothing to say about the dismissal of his former FBI deputy, Andrew McCabe, for “lack of candor.”

Mr. Comey is getting his moment of revenge as much of the press revels in the attacks on Mr. Trump. Yet his career, reinforced by his memoir, is a case study in the perils of the righteous prosecutor. It also shows why Mr. Comey’s view of the FBI as “independent” of supervisory authority is wrong and dangerous. A presidential bully who abuses power needs to be checked, but so does an FBI director who turns righteousness into zealotry.