Court filings show that Deputy Attorney General Rod Rosenstein gave the special counsel authority to probe Ukraine-government dealings
“An investigation of possible ‘links and/or coordination’ between the Russian government in its political-interference campaign and ‘individuals associated with the campaign of President Donald Trump ’ would naturally cover ties that a former Trump campaign manager had to
- Russian associated political operatives,
- Russian-backed politicians, and
- Russian oligarchs,”
the prosecutors wrote, citing language in Mr. Rosenstein’s original memo.
.. It further stipulated that Mr. Mueller was permitted to probe Mr. Manafort for any crimes “arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych. ”
Lois Lerner’s Last Laugh
If Congress did its job, nobody would be talking about another special counsel.
When House Intelligence Committee Chairman Devin Nunes subpoenaed documents and testimony from the FBI and Justice Department, he was stonewalled for months. In a last-minute bid to circumvent the committee’s demands, FBI Director Christopher Wray and Deputy Attorney General Rod Rosenstein met with Speaker Paul Ryan. The two men ended up agreeing to comply with the subpoenas—but only because Mr. Ryan informed them they would be found in contempt if they did not.
This kind of stonewalling has fed the agitation on Capitol Hill for a second special counsel, who would look into everything from the FBI’s handling of the Clinton email investigation to the use of the Christopher Steele dossier to obtain warrants to listen in on members of the Trump campaign. The calls are mistaken. But the frustration is real
.. But missing here is any discussion of the powers Congress itself has, including but not limited to the subpoena and contempt powers that ultimately forced Mr. Wray and Mr. Rosenstein into compliance.
.. If it only has the backbone, Congress can get what it wants out of the federal bureaucracy. Several executive-branch officials—including Justice’s Bruce Ohr and FBI lovers Peter Strzok and Lisa Page —will soon testify before the House Intelligence Committee. Possibly some or all of them will invoke their Fifth Amendment right against self-incrimination.
If Congress insists on its prerogatives, however, that wouldn’t be the end of the story. Witnesses who plead the Fifth can still be compelled to testify. The price is that the compelled testimony, and evidence derived from that testimony, couldn’t be used against the witness in a prosecution.
A special counsel might not like this, given his emphasis on indictments and prosecutions. But Congress should, because its end goal is political accountability. Which would be up to the American people to impose after learning exactly what abuses have transpired.
Trump, Flush With Power
This was the week Donald Trump became president.
Or at least the week he became the president we were always expecting. He ceased bothering to pretend that he was ever going to do the job in any normal sense of the word. He decided to totally own the whole, entire joke that he is.
He started hiring people right off TV. He extended his tiny fingers into his giant flat screen, “Purple Rose of Cairo”-style, and dragged cable conservatives directly into the administration.
We’ve always known Trump makes stuff up. But now he has stopped bothering to pretend that he doesn’t. Truthful hyperbole is out. Outlandish fabrication is in. Trump began bragging to Republicans at a private fund-raiser in St. Louis Wednesday: Oh, get a load of this trade stuff I made up to outfox that fox, Justin Trudeau. I felt bad doing it to such a nice, good-looking guy. But it’s hilarious!
He is no longer bothering to pretend that governing involves a learning curve. Now he finds it’s clever to be a fabulist, concocting phony facts about the trade deficit when talking to the Canadian prime minister — one of our closest allies — or inventing a story for donors about how Japanese officials test American cars by dropping a bowling ball on their hoods from 20 feet up to see which ones dent.
.. Trump & Friends presented this dizzying White House purge as a twisted version of him growing into the job, even as everyone else felt he was going in the opposite direction
.. Trump got his next moment of gross exaltation when Jeff Sessions, frantically trying to save his own job, fired Andrew McCabe hours before he became eligible for his government pension and on his birthday weekend. John Brennan, the former director of the CIA, tweeted that Trump will take his “rightful place as a disgraced demagogue in the dustbin of history.” Then the president’s lawyer, John Dowd, issued a statement Saturday saying he will “pray” that Rod Rosenstein “will follow the brilliant and courageous example” of Sessions and end the Russia investigation entirely.
Trump is giddy about all the CHAOS — he capitalized it on Twitter — feeling that he’s ridding himself of any idiots who called him a moron or dumb as a rock and any economists who don’t understand what a great dealmaker he is.
.. It’s the final Foxification of politics. Trump spends all his time watching Fox News, basing his opinions and tweets on it, and now he’s simply becoming one with it. He is even willing to overlook his distaste for the yeti mustache of the warmongering John Bolton and consider the Fox News analyst as a replacement for McMaster.Roger Ailes would be so proud, if he were still alive and harassing women.
.. Trump thinks he’s a fabulously devious manager creating “great energy,” with great ratings coming from his talent for theatrical twists and turns. But he’s really inhumane, playing people against one another and widely discussing successors for officials who haven’t even been officially informed that they’re walking the plank. And, far from the A-team he promised, he’s hired a bunch of pathetic, disgusting swamp schnorrers who can’t stop using taxpayer money to fund their office furniture or office redesign or luxury plane trips with their wives.
“I like conflict,” Trump said this month at a press conference with the Swedish prime minister, smacking his fists together and adding, “I like watching it, I like seeing it, and I think it’s the best way to go.”
Never mind that a lot of the country — and the world — craves stability.
.. “I think Trump is royally pissed about the Mueller subpoena of the Trump Organization records,” Trump biographer Michael D’Antonio says about the special counsel crossing the president’s red line. “He fears the nakedness of his true business activities being revealed far more than the shame of ‘Access Hollywood’ or Stormy Daniels. Unlike the show of blank paper in file folders conducted when he supposedly stepped away from his businesses, this will require real documents, and I doubt he can count on people lying for him.”
No New Special Counsel
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