‘What legal strategy?’: Trump relies on Trump to survive impeachment

To survive the riskiest battle of his presidency, Trump is skipping the legal minutiae and pulling out his fighting gloves.

For a president steeped in marketing and branding, impeachment offers new terrain on which to run the Trump playbook of defining an issue, waging war and then never backing down.

And the White House’s new strategy of treating impeachment primarily as a political argument puts President Donald Trump directly into his comfort zone.

Trump allies are the first to admit it’s not a strategy born out of any major legal thinking. Instead, it’s a bet Trump can prevail through his own aggressive public messaging campaign and the help of the Republican-controlled Senate, which ultimately would have to vote on the president’s fate following an impeachment trial.

George Washington University law professor who has participated in prior impeachment cases before Congress. “Many of the latest positions laid out in the letter undermine the White House’s best legal arguments.”

The White House letter to House Speaker Nancy Pelosi, sent on Tuesday night, said the administration will not cooperate in any way with the Democrats’ investigation. The letter argued the Democrats’ inquiry was invalid because liberals have long sought to discredit Trump since his election in 2016, and this was only the latest salvo.

Democrats launched the inquiry after a whistleblower complaint and White House summary transcript showed Trump asking the Ukrainian president to investigative his political rival ahead of the 2020 presidential campaign, a move Democrats say undermines national security and foreign interference in U.S. elections.

“The lawyers are dealing with a client who wants to see this type of aggressive and, frankly, reckless public banter,” Turley said, referring to the strong rhetoric laid out in that White House letter. “There has never been any evidence of the legal team being the driving force behind the White House’s public statement or strategy. At some point, they will have to mount a legal defense.”

Hiring former Rep. Trey Gowdy as an outside legal adviser was another sign of the political dimensions shaping the White House fight. While Gowdy served as federal prosecutor and district attorney in South Carolina, he’s also known for his partisan and aggressive leadership of the House Oversight Committee and his Fox News commentary.

White House officials expect Gowdy to play the role of made-for-TV surrogate during the impeachment fight, offering political advice, communication skills and “trench warfare” expertise, a senior administration official said. The president was excited he was joining the team, a second aide said.

Among Trump allies and White House officials, there’s also talk of Gowdy potentially managing the White House’s war room to steer the political and communications response, a Republican close to the White House said.

But Gowdy is not expected to be brought into the inner circle of the White House counsel’s office, over which top attorney Pat Cipollone has kept a tight grip.

“The counsel’s office wants to concentrate the flow of information as much as possible. They keep a narrow circle on this. Lawyers do not like others meddling,” said the Republican close to the White House.

In addition to the roughly 40 lawyers within the White House counsel’s office, the president is also receiving legal and communication advice from Rudy Giuliani and Jay Sekulow, the law firm of Consovoy McCarthy, and Marc Mukasey, a criminal trial lawyer based in New York, according to a second Republican close to the White House.

These attorneys maintain that the Democratic impeachment inquiry amounts to political theater and an abuse of process.

That argument also conveniently gives Senate Republicans an out, said one of the Republicans close to the White House. “The senators will not have to address the merits of the impeachment investigation. All they will have to say is that this is a charade. Why should I spend a moment on the merits?” this person said.

White House officials and Trump allies argue the administration’s letter to the House does contain legal arguments, despite any skepticism from constitutional law experts.

Officials say the White House has not received due process during the impeachment inquiry, an argument laid out in detail in the letter, including the ability to cross-examine and call witnesses and access evidence and transcripts of testimony.

“Let me just say: The Republican Party and president has been treated extremely badly by the Democrats, very unfairly, because they have a tiny margin in the House. They have eviscerated the rules. They don’t give us any fair play,” Trump told reporters on Wednesday at an event in the Roosevelt Room of the White House. “It is the most unfair situation people have seen.”

Trump added that the White House would cooperate with House Democrats if they held a formal impeachment vote and “if they give us our rights.” He also said the impeachment inquiry will likely end up being decided by the Supreme Court.

Republican lawyers and Trump allies overwhelmingly believe the Republican-controlled Senate will decide the fate of the Trump presidency.

For now, the White House is leaning into its aggressive political strategy of stonewalling the Democrats. They hope the approach will slow the Democrats’ inquiry and sap its momentum, so much so that Americans either become confused about the procedural details or lose interest. Polling now shows a majority of Americans favor the impeachment proceedings.

“What legal strategy?” said a third Republican close to the White House. “It’s a delay strategy to force the Democrats to impeach on procedural grounds of obstructing the investigation. There won’t be a court battle because the Democrats have no need to go to court, they will impeach for failing to provide documents.”

‘Stop talking’: Trump advisers want Giuliani dumped

Trump allies felt Giuliani’s free-wheeling monologues were hurting the president. And that was before the ex-New York mayor’s business associates got arrested.

For weeks, prominent Republican advisers have been privately imploring President Donald Trump to sideline Rudy Giuliani after a barrage of inconsistent, combative and occasionally cringe-inducing media interviews, according to three people familiar with the conversations.

And that was before the arrest of two foreign-born businessmen who reportedly helped Giuliani try to discredit former Vice President Joe Biden, the leading Democrat to take on Trump in next year’s election. Several reports have indicated Giuliani himself may be caught up in the probe.

Yet Trump remains linked to Giuliani, who was initially hired to help fend of Robert Mueller’s Russia investigators, but who now may have pulled the president into another investigation — one that might lead to impeachment. While the president has long appreciated Giuliani’s pugnacious and never-back-down attitude, Trump allies fear Giuliani will damage Trump with his long-winded monologues and free-wheeling accusations.

The constant sniping from staff could ultimately force Trump to dump his long-valued fixer, as he has done with former personal lawyer Michael Cohen and countless other ousted officials, like ex-Attorney General Jeff Sessions and former chief strategist Steve Bannon.

“Rudy Giuliani needs to stop talking,” said a former campaign official who remains close to Trump’s team.

Giuliani has been Trump’s attack dog since he was hired as an unpaid personal attorney April 2018. But the president’s personal lawyer has now found himself at the center of an unfolding controversy over the president’s attempts to get the Ukrainian president to open an investigation into Biden and his son, Hunter.

To numerous Trump advisers, though, the appearances have hurt more than they’ve helped the president.

Rudy right now needs to focus on himself and not Ukraine,” said an outside Trump adviser.

For now, Trump is sticking with Giuliani, or “My Rudy,” as Giuliani said the president sometimes calls him. “Nothing has changed on that,” said Giuliani’s own attorney, Jon Sale. Trump plans to keep using Giuliani on everything but Ukraine matters because they know he’s a witness if this goes to impeachment, according to a source familiar with the legal team’s strategy.

Trump said late Friday he didn’t know if Giuliani was still his attorney. “I haven’t spoken to Rudy,” he said. “I spoke to him yesterday, briefly. He’s a very good attorney and he has been my attorney.”

That’s good for Trump, Giuliani argued.

“I’m not a puppy — I know what I’m doing,” he said. If he didn’t represent Trump, Giuliani added, “they would let him be a punching bag.”

In a text on Saturday morning, Giuliani replied to the two most pressing questions he’s facing. “No knowledge of any probe. Still President’s counsel in same way as before…no change,” he wrote.

In a Saturday morning tweet, Trump wrote: “So now they are after the legendary “crime buster” and greatest Mayor in the history of NYC, Rudy Giuliani. He may seem a little rough around the edges sometimes, but he is also a great guy and wonderful lawyer.”

At least one Republican suggested Giuliani would not leave even if Trump wanted him to. Either way, Giuliani is not going away, given his central role in the budding Ukraine controversy.

Giuliani fed Trump the information that largely led the president in a phone call to pressure Ukrainian President Volodymyr Zelensky. The former New York mayor had spent months trying to make contact with Ukrainian officials to collect evidence and convince them that they should be looking at Hunter Biden’s work for a Ukrainian gas company and Joe Biden’s Obama-era efforts to have a Ukrainian prosecutor removed over corruption concerns. There is no public evidence that either Joe or Hunter Biden broke any laws.

House Democrats launched their impeachment inquiry after Trump’s request was revealed, spurring Giuliani to blanket the airwaves with his bulldog defenses of the president. Democrats have also subpoenaed Giuliani for documents and testimony related to his Ukraine activities, setting off a battle that’s likely to drag on for weeks.

Don Goldberg, who helped respond to congressional investigations in the Clinton White House, said Giuliani shouldn’t be helping Trump when he’s facing his own problems.

“It’s so messed up,” he said. “You’d think a president would want to have competent counsel if you’re talking about fighting for your political life. We’re so far not seeing that with the caliber he’s been using.”

Giuliani suggested in an interview this week that his television appearances could be reduced now that Trump’s legal team is expanding.

Some also speculated that the recent addition of former Rep. Trey Gowdy (R-S.C.) to the Trump impeachment legal team was an attempt to reduce Giuliani’s appearances on the airwaves.

Although Gowdy — who led the congressional investigation into former Secretary of State Hillary Clinton’s response to in the 2012 Benghazi terrorist attacks — won’t start as a Trump attorney until January, he could appear as a surrogate on television in the meantime.

Democrats initially launched an investigation into Trump on Sept. 24 after learning about his call with Zelensky.

And Giuliani has been talking — a lot.

On Sept. 19, he denied he asked Ukraine to investigate the Bidens, only to admit it 30 seconds later.

On Sept. 24, he blew up at radio host Christopher Hahn during a joint television appearance, calling him a “moron” and an “idiot.”

On Oct. 6, he yelled at TV host Howard Kurtz, putting his fingers to his lips to shush him in the middle of the interview.

And in a series of phone interviews, Giuliani described himself both as a “hero” and the real “whistleblower” in the Ukraine saga, questioning why anyone would praise the person who initially raised concerns about Trump’s call.

“If I get killed now, you won’t get the rest of the story,” he warned POLITICOlast month.

Michael Gerhardt, a University of North Carolina law professor who has written books on impeachment, said Giuliani’s primary legal role is to appear on television.

“That’s helping facilitate the political arguments the president is making,” he said. “But at some point, if impeachment gets any traction, you’re going to need somebody that can speak more clearly and more powerfully with respect to the different points of the impeachment articles that may be drafted and ratified.”

Giuliani said he and Jay Sekulow, another Trump attorney, are still working for Trump because they successfully represented Trump during Mueller’s investigation into whether the Trump campaign conspired with Russia to interfere in the 2016 election.

“Jay and I got us through the last one, not the peanut gallery,” Giuliani said. “The president has made his views quite well known.”

It’s not the first time prominent Republicans have complained to Trump about Giuliani. But those same allies say the situation has grown dire since the House opened its impeachment inquiry.

“I think he’s massively hurting,” said a person close to the Trump campaign. “His TV appearances are so confused and contradictory, he’s creating an impression of internal chaos.”

“He’s inarticulate,” said a Republican who speaks to the president. “Rudy hurts the president with inconsistent, confusing messages.”

One former senior administration official described it this way when asked what Trump’s strategy against impeachment should be: “Hopefully Rudy will be on the space shuttle.”

So far, Trump has not heeded the advice.

“As long as Giuliani is doing battle with the president’s perceived critics and opponents, that’s what matters to the president,” said Republican strategist Kevin Madden, who worked for Mitt Romney’s 2012 presidential campaign. “The efficiency of the performance isn’t as important as the willingness to do battle.”

Trump admires Giuliani’s brand, his loyalty and his Trump-like style, according to people familiar with their relationship. He has both political and legal experience at the national level, and has known the president for decades.

“They have a brotherly relationship,” said a second Republican who speaks to the president. “He likes his combative style.”

Giuliani’s reputation soared after the Sept. 11, 2001, terrorist attacks, when he was dubbed “America’s Mayor.” These days, he’s regularly mocked on late-night shows and “Saturday Night Live.” His favorable ratings dipped to their lowest point in 2018 since Gallup began their polling on him in 2004.

Still, Trump supporters credit him with helping the president survive the Mueller investigation — and now exposing the Biden allegations.

At the White House Friday, senior aide Stephen Miller forcefully defended Giuliani. “You should all be grateful Rudy Giuliani is helping to shine a light on the endemic corruption that occurred while Joe Biden was vice president,” he told reporters, alluding to unsubstantiated claims that Biden got a Ukrainian prosecutor fired to protect his son.

Republican strategist John Feehery said Trump loves what he is doing. “If this were any other president, Rudy would be a disaster,” he said. “There is a method to the madness. The goal is to always stay on offense and not be defensive.”

But there was at least one sign that Trump might be tiring of Giuliani.

On Thursday, the president told reporters he didn’t know the two Giuliani associates — Lev Parnas and Igor Fruman — charged with sending foreign money to U.S. political campaigns. Then, he turned the attention squarely back to Giuliani.

“You’d have to ask Rudy,” he said.

Impeach Rosenstein? C’mon, Man

In its latest futile gesture, the House Freedom Caucus sets its sights on ousting the man overseeing Robert Mueller’s Russia investigation.

..their public relations assault is not actually about his refusing to turn over this or that document related to the Russia investigation. It’s not really even about the lawmakers’ loathing of the broader investigation, though certainly President Trump’s congressional lackeys — Mr. Meadows and Mr. Jordan most definitely included — are increasingly desperate to derail it.
.. For Freedom Caucus leaders, this impeachment resolution is about something at once much broader and far pettier: the need to make a huge, disruptive, polarizing political stink just as members head home for the long hot August recess. Especially with a critical midterm election coming, it never hurts to have some extra well-marbled meat to throw the voters. And it is unlikely a coincidence that, less than 24 hours after filing, Mr. Jordan — who, lest anyone forget, is multiply accused of overlooking rampant sexual abuse while an assistant wrestling coach at Ohio State University — formally announced his candidacy for House speaker.
Not to make Mr. Rosenstein feel any less special, but this is the fourth year in a row that Freedom Caucusers have pulled a summer-break stunt so nakedly self-serving that it would be comic if it weren’t so odious in its quest to erode public faith in government and in democratic institutions more broadly. Indeed, for all those wondering how the Republican Party reached the point where Donald Trump could swallow it whole with his furious everything-is-awful-and-everyone-is-out-to-get-you brand of demagogy, look no further than the nihilists in the Freedom Caucus.
.. In 2015, Mr. Meadows became an overnight political celebrity when, on the day before break, he filed a motion aimed at overthrowing the House speaker, John Boehner. That effort eventually bore fruit.
.. In 2016, Freedom Caucus members filed a pre-break motion to force a vote on the impeachment of the Internal Revenue Service commissionerJohn Koskinen. (Impeachment is all the rage with these guys.)
And last summer, they filed a discharge petition demanding a vote on a repeal of Obamacare.
.. it has only nine co-sponsors, and Republican leaders, including Trey Gowdy, the chairman of the oversight committee, have expressed a distinct lack of enthusiasm for the effort.
.. Mr. Meadows didn’t even attempt to file a “privileged motion,” as he and his colleagues did against Mr. Koskinen two years ago, which would have forced a vote before members decamped on Thursday... the issue won’t get taken up until lawmakers return from break in September, if then. (That’s the beauty of pre-recess antics: They cannot fail before members get to spend several weeks touting them back home.)

There is vanishingly little chance that House leadership will let this toxic nonsense advance — Speaker Paul Ryan already has publicly smacked down the effort — and

zero chance that the motion could amass anywhere close to the two-thirds support required for the Senate to actually remove Mr. Rosenstein.

.. This stunt is in fact so ridiculous, so unfounded, so poisonous to the Republic that Attorney General Jeff Sessions felt compelled not only to publicly defend his deputy, but also to suggest that the lawmakers involved find a better use of their time.

.. Sally Yates, the former acting attorney general who was fired in January 2017 for refusing to defend President Trump’s travel ban, tweeted a warning about the long-term damage of “using the Department of Justice as a prop for political theater.”

.. It’s not that the Freedom Caucus members don’t recognize the damage they’re doing — or even that they don’t care. It is that delegitimizing government is at the heart of their movement.

.. Conflict and obstructionism have always been their purpose, fueled by their relentless message that

  • government is always the problem, that
  • all experts are idiots, that
  • cultural and coastal elites hate Real Americans and that
  • all of Washington is corrupt and broken beyond repair.

.. As has often been noted, Mr. Trump did not invent the apocalyptic message that he has used to dazzle the Republican base. He merely distilled it to its essence. But the base had been groomed for his arrival for years, in no small part by lawmakers like Mr. Meadows and Mr. Jordan, who have repeatedly proved eager to tear down democratic institutions in the service of their own political aims.

.. So while the Freedom Caucus’s pitiful effort to oust Mr. Rosenstein should not be taken seriously on practical grounds, it is a tragic reminder of the bleak path down which the Republican Party has been slouching in recent years. The rot was there long before Mr. Trump showed up to exploit it, and it is likely to remain long after he is gone.

Republicans, your ‘regular order’ is out of order

Babies are seized from their mothers’ arms. Photographs show their anguish. News reports describe their cages. A recording captures their wailing and a U.S. border official’s cold mockery. A defiant President Trump falsely blames others for the misery he created.

And Republican lawmakers respond as they often have: They hold another hearing about Hillary Clinton’s emails.

But they have run this play too many times before.

.. Just 29 seconds into Tuesday’s hearing on the defeated Democratic 2016 presidential nominee and her emails, Rep. Jerrold Nadler (N.Y.), top Democrat on the Judiciary Committee, interrupted to point out that something more important needs attention.

.. “They are children who have been forcibly removed from their parents in our name.”

Republicans on the committee tried to silence Nadler with calls of “order!”

Nadler spoke over them: “The United States should be better than this. We should not put children in cages.”

“Regular order!” called out Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee.

.. Ah, so it’s “regular order” to have the umpteenth hearing about a now-private citizen’s emails, but you’re “pulling” a stunt if you talk about the Trump policy under which border guards are reportedly telling parents they are taking children “for a bath” and the children never return.

No, Republicans, your “regular order” is out of order.

.. As soon as Gowdy had silenced Nadler, two women in the back of the room, with infants in their laps, began to heckle the lawmakers about the inhumanity of Trump’s family separation policy.

Gowdy slammed the gavel to the dais and demanded that the mothers and babies be removed. (At least the Capitol Police had the good sense not to take the babies from the mothers.) “We will be in recess until the Capitol Police restore order!” Gowdy proclaimed.

But “order” remained elusive.

.. Shortly after the moms and babies were evicted from the room, Rep. Elijah E. Cummings (Md.), top Democrat on the Oversight Committee, spoke. “Are we really going to sit here, 70 members of the Congress of the United States of America, in 2018, and have a hearing . . . on Hillary Clinton’s emails?

.. “We should be able to agree that we will not keep kids in child internment camps indefinitely and hidden away from public view. What country is that? This is the United States of America! We now have reports of parents being deported, but the Trump administration is keeping their children here.”

.. Unhappy that Clinton wasn’t charged in 2016 for mishandling her emails, they had demanded an investigation into the original investigation of Clinton. That investigation, conducted by Justice Department Inspector General Michael Horowitz, last week reported misconduct by some officials but “no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations.”

.. Now Republicans, still unsatisfied, are threatening to investigate the investigation of the investigation of Clinton. Senate Republicans hauled Horowitz in Monday, and House Republicans hauled him in Tuesday, to field questions for seven hours from 70 lawmakers

.. they care more about a scrubbed server than a clean conscience.

What has Trey Gowdy been smoking?

Gowdy, chairman of the House Oversight Committee, dismissed the notion, propagated by President Trump, that the FBI had a “spy” in the Trump campaign. He said the FBI did what it “should have done” and that informants such as the one used by the FBI are used “all day, every day by law enforcement.”

Gowdy told Fox News on Tuesday that, after a classified briefing on the subject, “I am even more convinced that the FBI did exactly what my fellow citizens would want them to do.”

.. Earlier, Gowdy took issue with his fellow Republicans’ claims that Russia didn’t try to help Trump win the election, saying it was “clear based on the evidence” that Russia sought to defeat Hillary Clinton. And he didn’t join other Republicans in their categorical claim that there was no Trump campaign collusion with Russia.

.. He also defended the broad mandate of the Mueller investigation, and he delivered a blunt message to Trump to talk to Mueller and give him time and independence: If Trump is innocent, then “act like it.”

.. Actually, we know exactly what Gowdy is smoking: the sweet herb of retirement.

.. Several of the 48 departing House Republicans have, like Gowdy, become last-minute truth tellers about Trump on their way out, including Thomas J. Rooney, Charlie Dent, Ryan Costello and Ileana Ros-Lehtinen.

.. The conspiracy crowd denounced him when the Benghazi committee, which he led, failed to validate their dark theories about Clinton.

.. But he was, in his eight years, one of the great GOP flamethrowers. He referred to his lengthy Benghazi probe as a “trial” of Clinton, and after a promising initial hearing, it quickly devolved into a partisan fight that singled out bugbears of the right such as Clinton aides Sidney Blumenthal and Huma Abedin.

.. He spearheaded the effort to hold Internal Revenue Service official Lois Lerner in contempt of Congress, and he claimed that the Obama administration’s refusal to cooperate with Congress was “proof” that President Barack Obama knew about the botched gun-running program “Fast and Furious.”

.. Gowdy, though undertaking three investigations into the Trump administration, has been rather more forgiving of this administration’s refusal to cooperate. Democrats on his committee say he hasn’t issued a single subpoena to the administration. When I asked Wednesday about Gowdy, Elijah E. Cummings (Md.), the top Democrat on the committee, was grudging: “We now live in a kind of alternate universe when individual Republicans get massive praise just for acknowledging the obvious and restating basic facts.”

 

Trey Gowdy’s total rebuke of Trump’s ‘spying’ narrative — and the pattern it fits

Rep. Trey Gowdy (R-S.C.) has spent the better part of the past 15 hours poking holes in President Trump’s dubious trial balloon about a spy in his campaign.

Gowdy, who was one of the few people to get briefed on the situation last week, told Fox News on Tuesday night that the briefing vindicated the FBI: “I am even more convinced that the FBI did exactly what my fellow citizens would want them to do when they got the information they got, and that it has nothing to do with Donald Trump.”

.. Even House Intelligence Committee Chairman Devin Nunes (R-Calif.), Trump’s most important ally in the House, has been quiet since receiving the briefing alongside Gowdy. That, perhaps more than anything, speaks volumes.

.. But we’ve been here before, and the lack of any real backup for Trump’s claims hasn’t stopped the GOP base from buying into them.

.. Few top Republican members of Congress are calling the Russia investigation a “witch hunt,” as Trump has, yet 82 percent of Republican voters and 44 percent of all Americans believe it is.

The Nunes memo that alleged a political and abusive predicate for the Russia probe wasn’t exactly embraced by Republicans, but it has  contributed to Trump’s narrative.

.. Almost none of these conspiracy theories have been embraced by the broader, official Republican Party. Almost all of them have broken through, thanks to Trump’s singularity, his saturation of media coverage and the lack of a concerted pushback beyond people like Gowdy, Graham and Rubio

.. Gowdy is not seeking reelection after this term, so he does not have to worry about the political consequences of speaking out against Trump.

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