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.

 

When Justice Is Partial

The Clinton campaign paid Fusion GPS to compile a dossier against Mr. Trump, a document that became the basis of the Russia narrative Mr. Mueller now investigates. But the campaign funneled the money to law firm Perkins Coie, which in turn paid Fusion. The campaign falsely described the money as payment for “legal services.” The Democratic National Committee did the same. A Perkins Coie spokesperson has claimed that neither the Clinton campaign nor the DNC was aware that Fusion GPS had been hired to conduct the research, and maybe so. But a lot of lawyers here seemed to have been ignoring a clear statute, presumably with the intent of influencing an election

.. But under this standard, where are the charges against the principals of Fusion GPS, who Sen. Chuck Grassley has said look to have been lobbying on behalf of powerful Russians against a U.S. sanctions law, with its payment again funneled through a law firm? This was a sideline to its dossier work, but Mr. Mueller usually has no issue with sideline charges.

.. Or what about an evenhanded look at dossier author Christopher Steele ? FARA also requires foreigners to register if they act on behalf of a foreign principal. Recently disclosed emails from senior Justice Department official Bruce Ohr show the British Mr. Steele pleading the case to the Justice Department on behalf of a Russian oligarch, Oleg Deripaska.

Of the seven U.S. citizens Mr. Mueller has charged, five have been accused of (among other things) making false statements to federal officials. But there have been no charges against the partisans who made repeated abjectly false claims to the FBI and Justice Department about actions of their political opponents. There have been no charges against those who leaked classified information, including the unprecedented release of an unmasked n between former national security adviser Mike Flynn and a Russian ambassador. Nothing.

Some of these charges might not stand up in court, but that’s beside the point. Plenty of lawyers would poke holes in the campaign-finance charges against Cohen, or the “lying” charges against Mr. Flynn. Special counsels wield immense power; the mere threat of a charge provokes plea deals. It’s the focus that matters.

Prosecutors can claim all they want that they are applying the law equally, but if they only apply it to half the suspects, justice is not served. Mr. Mueller seems blind to the national need for—the basic expectation of—a thorough look into all parties. That omission is fundamentally undermining any legitimacy in his findings. Lady Justice does not wear a blindfold over only one eye.

Failure to Communicate

Trump has a solid record, but he’s too busy making noise to tout it.

If a tree falls in a noisy circus, does it make a sound? If the Trump administration announces its largest deregulatory effort to date while the president is in the throes of a Twitter rampage, will anybody pay attention?

No, and thereon may hang the balance of Republican congressional control. It’s never clear where Donald Trump gets political advice, if he does at all. What is clear is that this White House is doing an able job of whiffing one of the best political messages in decades, a reality that is demoralizing administration insiders and GOP candidates alike.

.. The Environmental Protection Agency and Transportation Department released a plan—announced on the website of these pages—to ax the Obama administration’s car-emissions standards, saving consumers $500 billion. Dollarwise, it may be the biggest deregulation ever.

.. The Treasury has recommended rescinding the “payday lending” rule, which threatened to cut off the poorest Americans from viable credit.

.. The Internal Revenue Service lifted a political threat to nonprofits by allowing them to shield the names of their donors.

.. The Department of Health and Human Services finalized its rule allowing more non-ObamaCare insurance options to millions of Americans. The Senate sent a $717 billion defense authorization bill to the White House, increasing active-duty strength and providing troops their largest pay raise in nine years. The Senate also confirmed the 24th Trump circuit-court judge.

.. The Labor Department released new numbers showing worker compensation increased 2.8% year over year, the fastest pace in a decade

.. Republicans have long known they don’t get a fair hearing from the press, which is why they shifted to talk radio and other alternative media. Mr. Trump understands that better than most—thus his heavy use of Twitter, live rallies and press conferences.

.. The president is certainly focused on his base, though with an eye to whipping them up with rallies focused primarily on the polarizing issues of trade and immigration. His tweets revolve around the same issues—those and Mr. Mueller—and are often defensive or whiny.

.. If Mr. Trump makes those centrists believe this election is about family separation, Republicans lose. If he refocuses it on voters’ newly thriving prospects, Republicans have a shot.

.. One remarkable aspect of the Trump administration is its productivity. The cabinet set a pace of reform in its openings weeks that has never lagged. If Mr. Trump isn’t going to spend every day embracing, elevating and making this product of his own presidency the dominant discussion, then no one will. The press isn’t going to do it. Democrats sure aren’t. And no other Republican has that megaphone.

McCaskill’s Intimidation Game

The Missouri senator runs attack ads not on her opponent but one of his supporters.

Team McCaskill is already employing the Democratic Party’s go-to tactic this midterm: character assassination. There’s not much else. The economy is humming, the party’s centrist and liberal wings are fighting, and the drumbeat of impending Trump doom isn’t finding much accompaniment. So in Missouri as elsewhere, candidates are reverting to personal attacks. But the McCaskill forces are piling on a guy who isn’t even running.

.. Indeed, they are attacking a private citizen and donor, David Humphreys. Back in March, Chuck Schumer’s Senate Majority PAC began plowing millions into attacks on the businessman, who donated to Mr. Hawley’s campaign for attorney general. The pattern is the same: An ad makes a malicious accusation against Mr. Humphreys, then sidles over to tar Mr. Hawley with guilt by association. Just how invested are they in this strategy? Since airing their first spot, 70% of Democratic ads—amounting to $4.7 million—have been focused on Mr. Humphreys.

.. Ms. McCaskill’s pickle is that the GOP has upped its recruitment game. Her only prior re-election bid in 2012 had her face off against Todd Akin, who self-immolated after his blundering comments on abortion and rape. Mr. Hawley—a savvier, younger man and squeaky clean—hasn’t provided a similar opening. A native Missourian and onetime U.S. Supreme Court law clerk, he arrived on the political scene only in 2016, becoming the Show Me State’s first Republican attorney general in 24 years.
.. Mr. Humphreys is a long and active participant in Missouri civic life. He’s been a major backer of judicial reform, so the trial bar loathes him. He pushed hard for the state’s recently enacted right-to-work law, so unions loathe him. He sits on the boards of the free-market Cato and Acton institutes, so liberals in general loathe him.
.. A liberal organization, Campaign for Accountability, sought to keep the affair in the news by filing an official complaint with a federal prosecutor in Missouri. It may now wish it hadn’t. Mr. Humphreys’s attorney recently got a letter from U.S. Attorney Timothy Garrison, stating that his office had followed protocol and referred the issue to the FBI, which determined that “there was no basis for further inquiry.”
.. That won’t stop the attacks because they serve a greater purpose. Beyond the smears against Messrs. Hawley and Humphreys, such ads are a warning to other donors. Don’t get involved, or your reputations and businesses will be next.
.. Intimidation and threats, leveled against private citizens, are now standard liberal practice.
.. It isn’t about transparency in the public interest; it’s about identifying new political targets.