For all of the president’s Twitter tantrums about how the investigation is supposedly “rigged,” Mueller has never alleged that the Trump campaign was complicit in Russia’s election meddling.
This is not for lack of thoroughness on the prosecutor’s part. Mueller has brought two sweeping indictments against Russian operatives. Rosenstein made these charges a point of emphasis in the interview. It is noteworthy, then, that these narrative “speaking indictments” appear to preclude the possibility of a conspiratorial relationship between the Kremlin and the Trump campaign. They indicate that Russia was conducting influence operations before Trump entered the campaign, that it orchestrated some against Trump, and that it wanted deniability.
Clearly, Rosenstein has been fixed on something often ignored by the president: Trump would benefit from being exonerated after a searching investigation by Mueller.
.. He appointed Mueller at the end of a frenetic week in which, reportedly distraught, he discussed the possibility of covertly recording Trump at meetings to demonstrate the latter’s instability. This would be a prelude to invoking the 25th Amendment.. The Mueller appointment — after Rosenstein considered naming former Obama deputy attorney general James Cole — was designed to signal to the Washington establishment that Rosenstein (confirmed 94–6, thanks to overwhelming Democratic support in the Senate) was still on the team... For Trump’s part, moreover, it would be foolish to believe that the president’s drumbeat against the investigation means he fails to grasp the potential benefit of being cleared by Mueller. He surely gets it. Yet, unlike Rosenstein, Trump has had to live with the challenges of governing under a cloud of suspicion.. he may well believe these costs have outweighed any benefit he’d get from being cleared for something there was never much evidence he did. Plus, the president is nothing if not shrewd. There are political advantages in ripping the probe. He does not forfeit the upside of exoneration by stressing that his campaign and administration have been targeted by an investigation rife with leaks and other irregularities. Even if the riled-up Trump base believes the probe is a witch hunt, it would still credit him for being cleared... Rosenstein maintains — in the Journal’s words — that “the investigation has already revealed a widespread effort by Russians to interfere in the 2016 presidential election.”.. In fact, the indictments are more in the nature of publicity stunts than charging instruments. Foreign powers are subjected to counterintelligence investigations, not criminal probes, in part because they are essentially immune from prosecution. Mueller’s indictments against Russians enable Rosenstein and the special counsel’s other cheerleaders to argue that the dozens of people charged show that the special-counsel appointment was — as Rosenstein claims — “appropriate and independent.”.. But they don’t. An indictment is just an allegation; it does not prove anything. More to the point, everyone — very much including Rosenstein and Mueller — is well aware that Vladimir Putin was never, ever going to turn his operatives over to the American justice system for trial. As I’ve pointed out before, there are another 143 million people in Russia, and if Mueller were to charge every one of them, he’d have very impressive indictment statistics but he won’t have proved anything, and he won’t have come close to establishing that anyone in America, let alone the president of the United States, colluded in election interference... there is no reason the indictments against Russians could not have been filed by the Justice Department without the appointment of a special counsel.. Rosenstein refused to discuss well-sourced reports that he suggested covertly recording the president. It is not apparent whether he was asked about proposing that the 25th Amendment be invoked against Trump. Nor is there indication that Rosenstein was pressed on such flashpoints as whether he actually read the FISA surveillance warrant against a former Trump campaign official that he approved in June 2017.. (The warrant expressly said that the FBI believed that Trump campaign officials were likely complicit in Russia’s election interference.) And was Rosenstein asked about the Justice Department’s stonewalling of congressional inquiries into apparent investigative irregularities? We don’t know... a reader who had not been following the storms engulfing Rod Rosenstein’s tenure as deputy attorney general would come away come away from the Journal’s interview wondering why there is so much fuss about such a dedicated, unassuming public servant.
The Truth Will Set Us All Free
The only way to clear up this messy saga is for Trump to immediately declassify all documents — without redactions — relating to the Mueller investigation, the FISA court warrants, the Clinton email investigation, and CIA and FBI involvement with the dossier and the use of informants.
Second, there needs to be another special counsel to investigate wrongdoing on the part of senior officials in these now nearly discredited agencies. The mandate should be to discover whether there was serial conflict of interest, chronic lying to federal officials, obstruction of justice, improper unmasking and leaking, misleading of federal courts, and violation of campaign-finance laws.
Trump Reeks of Fear
I can smell Donald Trump’s fear from here. His panic. His anxiety.
.. The only people who know what has been discovered in the Russian election meddling probe are Special Counsel Robert Mueller and his team, and they aren’t talking.
But President Trump no doubt knows far more about it than the rest of us, and what he knows — or what he fears — appears to be a consuming preoccupation. He tweets about the investigation constantly.
.. “They have come to believe that, if the Democrats win control of the House in November, the chamber will vote on whether to begin the impeachment process no matter the outcome of Mr. Mueller’s investigation. So they want to sway Americans — and by extension, lawmakers.”
.. The Times quoted Rudy Giuliani, one of the president’s lawyers, as saying, “Nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation, and that’s why public opinion is so important.”
.. Politico reported on this strategy in May, writing: “President Donald Trump and his lawyers have made a strategic calculation that their fight against Special Counsel Robert Mueller is more political than it is legal. They’re banking that the lead Russia investigator will follow longstanding Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.”
.. “So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and G.O.P. members of Congress.”
.. In May, CNN’s Dana Bash interviewed Giuliani, and she posited that the “Spygate” saga was “an intentional strategy to undermine the investigation, knowing that they, the investigators, the special counsel, it’s their policy not to talk. But you are very free to and are very aggressive about doing so.”
Giuliani responded in part:
“Of course, we have to do it in defending the president. We are defending — to a large extent, remember, Dana, we are defending here, it is for public opinion, because eventually the decision here is going to be impeach, not impeach. Members of Congress, Democrat and Republican, are going to be informed a lot by their constituents. So, our jury is the American — as it should be — is the American people.”
.. One has to ask: Why exactly is impeachment front of mind for these people? If they were as innocent as they publicly proclaim, they would know that impeachment would be out of the question as a matter of fact and law. But that is apparently not the case.
.. I believe that Trump is conducting himself as only a guilty man would, one who has a very real and well-founded fear that he is in imminent jeopardy.
.. In May, Trump added Emmet T. Flood, a lawyer who represented Bill Clinton during his impeachment, to his legal team.
.. Impeachment is always on Trump’s mind, and so he relentlessly pursues his strategy of creating a climate of incredulity to ward it off.
.. Republicans, who now give Mueller a 17 percent approval rating, down from 29 percent in March.
.. Trump contends that there’s no there there. If not, why is he acting like there is?
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