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.
.. Mr. McCabe urged Mr. Flynn to conduct the interview with no lawyer present—to make things easier.

.. 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.

 

The Myth of Watergate Bipartisanship

Reporters and political commentators often express frustrated surprise at the steadfast support of President Trump from most Republicans in the House and Senate. But they shouldn’t — it has happened before.

In fact, when these critics refer back to the Watergate era as a time of bipartisan commitment to the rule of law over politics, they get it exactly wrong. Defending the president at all costs, blaming investigators and demonizing journalists was all part of the Republican playbook during the political crisis leading up to the resignation of President Richard Nixon.

.. In late 1972, when a Democratic congressman, Wright Patman of Texas, began to investigate connections between Mr. Nixon’s aides and the Watergate burglary, the House Republican leader, Gerald Ford of Michigan (who later succeeded Mr. Nixon as president), called it a “political witch hunt,” according to the historian Stanley I. Kutler in his book “The Wars of Watergate.”

.. Ted Stevens, a Republican senator from Alaska, repeated Mr. Ford’s warning that the investigation could become a “political witch hunt,” according to Mr. Kutler.

.. When Mr. Baker famously asked, “What did the president know, and when did he know it?” during the Watergate hearings, he meant to protect Mr. Nixon in the mistaken belief that the president didn’t know about the Watergate cover-up until many months after it occurred.

The question backfired once evidence mounted that Mr. Nixon was involved in the cover-up from the start, and Mr. Baker eventually became a critic of the president.

After it was revealed in July 1973 that Mr. Nixon had secretly taped conversations, Mr. Ford said he found nothing wrong with the president’s practices. Republican Senator John Tower of Texas later warned Congress not to get caught up in “the hysteria of Watergate.”

Most congressional Republicans rallied around Mr. Nixon when the White House released edited transcripts of those tapes in April 1974 that showed Mr. Nixon scheming with his aides. As the House Judiciary Committee began debating possible impeachment in July, Representative Delbert Latta of Ohio said the evidence failed to prove Mr. Nixon’s direct involvement in Watergate.

.. Mr. Latta and most other Republicans on the Judiciary Committee voted against all articles of impeachment on July 27-30, 1974. Eleven of 17 Republicans voted against the obstruction-of-justice article, 10 of 17 opposed the abuse-of-power resolution, and 15 of 17 voted against the article based on the president’s refusal to produce tapes in response to the committee’s subpoenas.

.. More Republicans abandoned Mr. Nixon on the obstruction-of-justice charge only after he complied with the Supreme Court’s order on Aug. 5, releasing the “smoking gun” tapes that proved he had ordered a cover-up of the Watergate crimes. Still, many party members of the Judiciary Committee later filed reports arguing that Mr. Nixon was innocent of two of the three articles of impeachment sent to the full House.

.. During Watergate, most Republicans in Congress supported Mr. Nixon until the tapes provided undeniable evidence that he had obstructed justice. It remains to be seen whether current party leaders will support Mr. Trump no matter what evidence Mr. Mueller’s investigation unearths about the conduct of the president and his aides. Such behavior might be unwarranted, but it won’t be unprecedented.