Why not, then, appoint another special counsel to squeeze the squeezers? Why not turn the tables?
.. Deputy Attorney General Rod Rosenstein made a foundational error in appointing Robert Mueller to be special counsel to investigate . . . well . . . um . . . come to think of it, that was the error: The investigation has no parameters, and thus no limitations.
Investigations conducted by prosecutors are supposed to be rooted in known crimes — or, at the very least, articulable suspicion that known crimes have occurred.
those crimes must form the basis for two salient findings:
(1) that the Justice Department has a conflict of interest so severe that it cannot conduct the investigation in the normal manner, and
(2) that it is necessary to appoint, from outside the Justice Department, a quasi-independent prosecutor.
.. This special prosecutor is to be given a grant of investigative jurisdiction limited to the crimes that the Justice Department is too conflicted to investigate — and no other crimes, unless the special counsel explicitly requests, and the Justice Department grants, an expansion of jurisdiction.
.. Because counterintelligence is not lawyer work, and because the objective of counterintelligence is to gather information about a foreign power, not to build a criminal case against a suspect, prosecutors are not ordinarily assigned to counterintelligence investigations.
.. In the Mueller appointment, then, counterintelligence is camouflage for something that should never happen: a special counsel unleashed to hunt for crimes to prosecute despite the absence of known crimes warranting appointment of a special prosecutor.
.. is looking into whether Jared Kushner’s financial woes influenced Trump-administration policy towards Qatar.
.. Where I part company with them is not over whether we need an investigation; it is over whether that investigation should be done by a special counsel.
.. The patent flaw in the Goodlatte-Gowdy proposal is the same one that plagued Rosenstein’s appointment of Mueller: There is no triggering crime.
.. Investigative Excesses Are Usually Not Crimes
It is very bad for investigators to exhibit bias, to allow bias to taint their exercise of investigative and prosecutorial discretion, to depart from Justice Department guidelines, and to provide unverified information to the Foreign Intelligence Surveillance Court (FISA court). But none of these things is a crime – at least, not obviously so... There is no criminal statute addressing bias on the part of agents and prosecutors. We all have biases. It would not be possible to have bias-free investigators.
.. But if deviations from guidelines were to become a basis for legal action, including criminal prosecution, one of two things would happen: The guidelines would be repealed, or they would be rewritten in a broadly permissive manner, endorsing investigative behavior that might be justifiable in exigent circumstances but would be grossly inappropriate the rest of the time.
.. If police and prosecutors came to believe enforcement errors would lead to prosecutions or civil lawsuits against them, they would refrain from taking any but the most uncontroversial enforcement actions. In another context, Heather Mac Donald has written compellingly about this phenomenon as “the Ferguson effect.” To discourage policing is to erode the rule of law, imperiling societal peace and prosperity.
.. If there was a good-faith basis for the FBI and Justice Department to investigate possible Trump–Russia ties of a corrupt nature, it would be very difficult to prove that investigators broke the law in conducting their investigation
.. Candidate Trump made alarmingly ingratiating statements about Vladimir Putin
.. Trump brought Manafort and Gates into his campaign at a very high level. They had notorious ties to Kremlin-backed Ukrainians. Those ties are not speculation; they are established fact. Moreover, Trump publicly identified Carter Page, an obscure Kremlin apologist, as one of his campaign’s handful of foreign-policy advisers. Simultaneously, the FBI was alerted that the Russians might be in possession of thousands of hacked emails damaging to Hillary Clinton, and might have made a point of communicating this claim to George Papadopoulos, another of the few identified Trump foreign-policy advisers.
.. Then the bureau was approached by Christopher Steele. Far from being unknown to the FBI, this former British spy was a proven asset, having provided information that helped the bureau crack the FIFA soccer case
.. Steele alleged that Trump was involved in a corrupt conspiracy with Russia, in which Manafort, the point man, was using Page as an intermediary. Because of his prior work with the bureau, Steele would not have been ignored by the FBI, regardless of the Clinton campaign’s sponsorship of his work
.. given the preexisting reasons for concern: Trump’s pro-Putin rhetoric; the backgrounds of Manafort, Gates, and Page; and the report about possible Russian involvement in hacked Democratic emails.
.. It would not be credible to claim that the Trump-Russia investigation was fabricated out of whole cloth. Even stipulating that the top FBI/DOJ hierarchy was biased against Trump, and thus too quick to credit sensational allegations of Trump wrongdoing, there were good-faith reasons for concern about ties between the Trump campaign and the Russian regime. These reasons do not prove that Russia was behind the hacking of Democratic emails; that Carter Page was a Russian agent; that Manafort and Gates were choreographing a Trump–Russia conspiracy; or that Trump’s Russia rhetoric was anything more than a political novice’s effort to do what American administrations have been doing for decades — seek better relations with Moscow.
.. Goodlatte and Gowdy are also right to suggest (as I believe they have) that the contemplated investigation should scrutinize the handling of the Clinton-emails probe
.. The special counsel is a pernicious institution that operates outside the procedures and discipline of a normal U.S. attorney’s office — where the merits of every case must be weighed against those of every other in the competition for limited investigative and prosecutorial resources.
.. Attorney General Sessions should assign a U.S. attorney from outside Washington to conduct a probe of how the Clinton-emails and Trump-Russia investigations were handled by the Justice Department and FBI. A good model would be John Durham, the U.S. attorney for Connecticut just confirmed by the Senate.
.. the Bush administration was cut no slack by Fitzgerald, then a career prosecutor who is remembered for conducting a hyper-aggressive probe.
.. Mueller is effectively independent only because Rosenstein has chosen to be passive
.. Mueller reports to Rosenstein, who could assert more active supervision.
.. There is no reason that Attorney General Sessions cannot structure a probe that can be credibly conducted by the Justice Department’s standard investigative arrangement
Hope Hicks’s resignation caused a stir. But what she did first is more important.
She did not — indeed could not — invoke executive privilege, a power that only Mr. Trump can wield to prevent disclosure of information to Congress. But she refused to answer anyway, as though executive privilege properly applied.
A self-respecting legislative branch would not allow executive-branch witnesses to so easily evade basic questioning, particularly when it concerns matters as important as the Russia investigation.
.. It is unjustifiable to use executive privilege when the White House communications director is asked about, say, the president’s involvement in crafting a deceptive public statement about his son’s infamous 2016 Trump Tower meeting with a Russian lawyer — or, for that matter, her own role in the episode.
.. When past presidents sought to prevent or limit disclosure, they typically either invoked executive privilege or worked out a deal with congressional investigators before taking that formal step. Now, top Trump administration officials are evading questions without the White House doing either.
.. Ms. Hicks’s behavior has not been isolated. Former Trump strategist Stephen K. Bannon was similarly uncooperative. Before the Senate this past June, Attorney General Jeff Sessions explained that he could not invoke executive privilege but that his refusal to answer certain questions protected “the right of the president to assert it if he chooses.” Even Corey Lewandowski, who never worked in the White House, was evasive.
.. Lawmakers at least followed up by subpoenaing Mr. Bannon, a step they failed to take with Ms. Hicks when she testified. But she is as deserving of a subpoena. Meanwhile, the House should move to hold Mr. Bannon in contempt for his continued foot-dragging, which would require the assent of Speaker Paul D. Ryan (R-Wis.).
.. Republicans held Attorney General Eric H. Holder Jr. in contempt when they were pursuing their trumped-up investigation of the “Fast and Furious” gunrunning scheme. Zealously defending the dignity of the legislative branch mattered to them when a Democrat was in the White House. And now?
GOP Rep. Gaetz: ‘If Jeff Sessions Does Not Appoint a Second Special Counsel, Then We Need a New Attorney General’
“If Jeff Sessions does not appoint a second special counsel, then we need a new Attorney General, judge,” he said. “Because you’re right — even if we learn more horrifying things from the Inspector General, we can’t actually prosecute somebody for those things because we would need somebody to be able to bring that case. And the Department of Justice and FBI obviously won’t be bringing a case against themselves. So, Jeff Sessions needs to get rid of this mindset that is a dereliction of duty, and he needs to do what Congress has called for and appoint a second special counsel to get to the bottom of this.”
Trump’s calamities are coming faster — and in bunches
Meanwhile, Trump is back to publicly berating Attorney General Jeff Sessions, who responded with a pointed statement — and then went out to dinner with Deputy Attorney General Rod J. Rosenstein in a very public sign of solidarity.
Noel Francisco, the solicitor general, was there too. You may recall that Francisco is in line for the No. 3 spot at the Department of Justice after the departure of Rachel Brand.
.. anyone who is surprised by the utter chaos, the ethical sleaze, the policy incoherence and the nepotism/cronyism was not paying attention during Trump’s career in real estate or during his campaign. This is how Trump ran his family operation, stumbling through one failed venture after another.
.. This is how Trump wound up declaring bankruptcy multiple times. No one — not Kelly, Ivanka, Jared, the GOP Congress or even Hicks — can keep him on task.
.. Trump will either be compelled to leave office or will continue to spin out of control. Aides tell the press this is a new level of chaos. Don’t worry — it’ll get worse.